"(T)o say that the individual is culturally constituted has become a truism. . . . We assume, almost without question, that a self belongs to a specific cultural world much as it speaks a native language." James Clifford
Showing posts with label corporate governance. Show all posts
Showing posts with label corporate governance. Show all posts

Monday, February 3, 2020

CSR and Corporate Governance Reform: An Opporunity for BlackRock as an Activist Shareholder

In 2019, BlackRock’s management and board publically fired two executives in the Hong Kong office for breaching company rules on dating subordinates. The firings demonstrated to employees that the company would enforce its employee policies and sent the message that employees would be “free to point out problems in the workplace.”[1] This would not be so extraordinarily significant but for the fact that BlackRock is the “world’s largest money manager with $7.4 trillion under management,” which enables the company, through the funds it runs, to be “one of the five largest shareholders in nearly every corporation in the S&P 500.”[2] So BlackRock “can cast votes and pressure boardrooms to effect change.”[3] The company would be hypocritical in using its power as a major stockholder to get managements to have and enforce good workplace policies if the company were not doing so itself. From the standpoint of self-regulatory capitalism in society, BlackRock could make a significant contribution far beyond improving workplace policies.

In January 2020, BlackRock’s management announced that it “would take a tougher stance against corporations that aren’t providing a full accounting of environmental risks.”[4] This was “part of a slew of moves by the investment giant to show it is doing more to address investment challenges posed by climate change.”[5] BlackRock CEO Laurence Fink wrote, “The evidence on climate risk is compelling investors to reassess core assumptions about modern finance.”[6] The long-term viability of companies is a salient variable in recalculations.

As much as issue-specific stockholder activism narrows the gap between the values and priorities held by business and society, the matter of corporate governance is also important. In particular, companies whose managements control their respective boards of directors suffer from a deficit of accountability in their governance system. Board members could be influenced on issue-specific stockholder activism and yet a CEO could ignore any pressure from members if he or she controls the board, whose functions include holding the CEO accountable. BlackRock had the power as of 2020 to pressure boards to break up the conflict of interest when a CEO is also the chair of the board of directors at a company. Because of BlackRock’s reach in overseeing so many companies, corporate governance could effectively get a remake such that greater accountability would be part of the governance systems. Because outside directors would theoretically have more sway over a company’s management, wider issue-specific stockholder activism could have greater resonance with management. The gap between corporate and societal values and norms could thus be narrowed. Indeed, the capitalist system within a society would be more self-regulated in terms of corporate governance.

In short, BlackRock could improve the business sector significantly beyond responding to particular issues. Perhaps business itself is vulnerable to missing the big picture at the scale of governance systems, and thus opportunities to improve them. Even though the focus on quarterly earnings and, moreover, on profit-seeking may play a role, I submit that even CEOs do not typically cast a wide enough eye such that governance systems (not only in business, but also government!) are entirely in view as systems. Focusing on particular stockholder issues is closer to the focus on profitability, and thus primary.


[1] Dawn Lim, Steven Russolillo, and Jing Yang, “At BlackRock, Public Firings, Overseas Probe Send Message About Office Misbehavior,” The Wall Street Journal, February 3, 2020.
[2] Ibid.
[3] Ibid.
[4] Dawn Lim and Julie Steinberg, “BlackRock to Hold Companies and Itself to Higher Standards on Climate Risk,” The Wall Street Journal, January 14, 2020.
[5] Ibid.
[6] Ibid.

Wednesday, November 20, 2019

Managing Externalities in Business: Heliogen’s Breakthrough in Combatting Climate Change

A company’s values and norms can resonate to some extent with their societal counterparts by the company providing goods and services of value to customers resulting in a reduction of their suffering or increase in their happiness. Providing a net-value (the value to the customer less the price) to people can resonate with societal values and norms that esteem happiness and frown on suffering from want. Indeed, a utilitarian ethic can apply to the provision of as much value as possible in the form of goods and services that reduce the suffering or increase the happiness of as many people as possible. Legitimate wealth can “result from having provided a significant amount of value to a significant number of people.”[1] Even fortunes, according to this ethic, are justified by the provision of “a very unusual form of value to a very unusual number of people.”[2] Utilitarianism is popularly known from the expression, the greatest good to the greatest number (i.e., of people). Of course, an ethic justifies what should be, whereas the extent to which a company’s values and norms approach those of society is a descriptive matter. Describing the degree of fit is not to say that a company’s values and norms should (i.e., normatively) have that degree of fit, or even more. Ethical reasoning would be needed to supply the normative contention; such reasoning involves argumentation that the extant societal values and norms should be held generally speaking and specifically by companies. The fact that the values and norms of many German companies in the NAZI era resonated with societal values and norms is not to say that the managements should have sought to fit organizational values and norms with NAZI values and norms. The field of business & society, which is oriented to the degree of fit that exists descriptively between a company (or the business sector) and a society (or internationally-held values and norms), is thus distinct from business ethics, which is oriented to providing ethical justification for what managers and companies should do. With regard to the former field, companies can orient themselves even closer to societal values and norms than by providing value to customers and even taking other stakeholder interests into account by being primarily oriented to taking on a serious societal or global problem. In terms of business ethics, such an orientation can be said to be one that a company should have because an unusual number of people (even beyond customers and other stakeholders) could receive an unusual amount of value. Climate-change is such a problem, and Heliogen’s breakthrough exemplifies such an extraordinary mission.

Generally speaking, a mission that is primarily geared to solving a serious societal (or global) problem goes beyond providing value to customers and even taking into account the interests of other stakeholders. In such a mission, a society or even the species itself is the main recipient of the extraordinary value even though customers receive value too. Whereas the traditional business model is geared to profiting by selling value to customers, a company’s mission that is dominated by providing extraordinary value to a society or to humanity worldwide views profiting from sales to customers as a means. An opportunity cost thus exists in such a mission due to the profit forgone from customers due to the orientation being foremost to the macro problem.

Even though spending capital to solve a macro problem is not the same as paying externalized costs of the problem, an opportunity cost can arise if the net present value of the profits in the long-term is less than the R&D spending up-front. Even if the mission fits within the traditional business model (i.e., the net present value is more rather than less), the risk taken on because the substantial R&D outlays are not met with immediate profits can be said to be an opportunity cost in pursuing an intractable societal or global problem by coming up with a breakthrough. The opportunity cost can be viewed as paying such that future externalized costs of the problem will not occur. Of course, if a company solves the entire problem, rather than merely reducing that which has been making and would otherwise make the problem worse, most or all of the current externalized costs may disappear and thus not need to be paid. Such a company has in effect taken upon itself the relevant externalities (i.e., covering those costs otherwise left to society).

By externality, I mean a cost that under the traditional business model is borne by society (or humanity) rather than by a company or the business sector. For example, as of 2020, companies had not had to pay even a fraction of the costs of climate change even though the business sector had contributed to the problem by polluting. The default stance under the traditional profit model is typically defensive; a less common proactive stance is to reduce the company’s contribution of the problem, such as airlines did in using more efficient engines. An even less common stance is to be primarily oriented to reducing the contributions from other sources and even to solving the macro problem itself. As argued above, just the risk taken on can put this stance beyond the traditional business model. Such a stance, in being oriented beyond customers and even other stakeholders to focus on a societal problem, fits under another paradigm. This is not to say that it is based on corporate social responsibility, for a company does not have a responsibility to orient itself to reducing or solving a societal problem except as may happen as a result of providing value to customers. Indeed, a company’s founding investors and management may want to tackle a societal problem, rather than feeling obligated. In the case of climate change, the likely downside for the species already known in 2019 could be enough of a motivation even if the founding investors and management do not feel responsible for the problem.

Even though a responsibility may not pertain, the organizational values and norms of a company oriented to minimizing or solving a societal problem stand a good chance of approaching their societal counterparts—closer than from merely satisfying customers and even other stakeholders. That is to say, beyond stakeholder management, externalities management can be said to be oriented to societal (or macro) level problems. Such management had been rare, at least by 2020, because few companies had been principally oriented to societal or global problems without simply relegating them to a corporate social responsibility program as if out of a sense of responsibility. Whereas the literature on stakeholder management and CSR had been around for decades by 2020, not much was written on externalities management that subordinates profit-seeking to reducing or solving a societal problem. 
 
Management geared to externalities can be problematic, especially for publically-traded companies, whose managements are bound by fiduciary duty to look primarily at the short-term returns to stockholders. This duty is firmly grounded in property rights. Can such managements afford to put solving societal problems as foremost? Heavy R&D spending upfront with (admittedly healthy) profits only if and after a breakthrough has been invented and implemented by customers is not the typical way of attracting and retaining equity capital. Language in the charters would have to specify the primary purpose of the company as meaning that expedited profiting would be excluded or subordinated to reducing or solving a particular societal problem. A company’s default purpose is admittedly to make a profit, but property-rights give the owners (i.e., the stockholders) the right to set another purpose in place of the default, in which case investors have no reason to be upset when the purpose is pursued even at the expense of quarterly earnings and dividends.

By 2020, climate change had emerged as a major problem facing humanity with dire consequences being predicted to occur in decades rather than centuries. Heliogen, a start-up funded in part by Bill Gates, the founder of Microsoft, and at least one other billionaire, commenced as such a company oriented to inventing a product that, when sold to industrial customers, would significantly reduce carbon emissions and thus hopefully stave off the worst of the dire consequences. That is, Heliogen put its capital toward discovering a breakthrough that would reduce future externalizable costs even though the company’s high R&D costs would not be met with profits for some time. With a focus on achieving a breakthrough that would be of significant value to the world even beyond stakeholders, the company’s management must have known that profits would be long-term-oriented, rather than relatively short-term profits from incremental values sold to customers.

The secretive clean-energy company announced in November 2019 that artificial intelligence and a field of mirrors could be used together to significantly reduce greenhouse emissions by industry. The invention could generate extreme heat above 1,000 degrees Celsius—a temperature that is about a quarter of that which is on the surface of the Sun. “The breakthrough means that, for the first time, concentrated solar energy can be used to create the extreme heat required to make cement, steel, glass and other industrial processes. In other words, carbon-free sunlight can replace fossil fuels in a heavy carbon-emitting corner of the economy that has been untouched by the clean energy revolution.”[3] These industries were “responsible for more than a fifth of global emissions, according to the EPA.”[4] Accordingly, Soon-Shiong, who sat at the time on the Heliogen board, said, “The potential to humankind is enormous  . . . The potential to business is unfathomable.”[5]  Indeed, the company’s mission was of such scope, rather than merely to finding a better way to make cement and steel, that a breakthrough could result. Externalities management is geared to making an enormous contribution to humanity. Even having an unfathomable potential to other industries can be viewed as lying within the purview of such management, as distinct from stakeholder management. Of course, this is not to say that something of value would or could not be sold to customers for a profit, but the emphasis lying elsewhere makes both Heliogen and externalities management distinct.

Such a mission as does not prioritize the traditional business model can be attractive to investors who have already made their fortunes by prioritizing that model and have gone on to worry about problems facing humanity not currently being adequately addressed by business and government. Heliogen provided a way for Bill Gates and at least one other billionaire to put their wealth to use on a global problem that could even render the species itself extinct. Start-up companies can be vehicles for rich former titans to turn their attention to such serious problems with a feeling not of responsibility, but, rather, of satisfaction from having saved the species. In other words, having been satisfied by playing within the traditional business model, the aspirations of former titans can shift to the societal or global level even if without having given up profiting completely.

In the early twentieth century, Andrew Carnegie and John D. Rockefeller retired from business to turn to charities. Among other things, Carnegie sponsored a library in Pittsburgh and Rockefeller founded a university in Chicago. In fact, Rockefeller, through his foundation, gave away roughly half of his fortune.[6] Both men had been ruthless in business; whether their respective giving afterward justified their business conduct (e.g., Carnegie against labor and Rockefeller against competitors) is another question. Rockefeller went so far as to view both his monopoly and charitable giving in Christian terms. In God’s Gold, I untangle whether Rockefeller’s monopolistic tactics (i.e., his business ethic, or lack thereof) can be justified by his religious mission in business and giving. For my purposes here, it suffices to say that neither titan would have viewed his respective company and charitable giving as being oriented to making a breakthrough on a humungous global problem. Indeed, Rockefeller filtered requests for his charitable giving by how efficient the money would be used; he was primarily oriented to using his fortune to solve a hitherto intractable serious problem facing mankind as Bill Gates was. Gate’s orientation was doubtless on keeping climate change from being an existential threat to future generations.

Externalities management is admittedly not a good fit for the vast majority of companies, which are oriented to maximizing profits while minimizing risks, but not every company must be made to fit within the traditional business model. A company can be formed and utilized in a way that puts profit-making through the funnel of externalities management geared to reducing or solving macro problems. Such a raison d’etre is distinct from undertaking a social responsibility program or being motivated by a sense of responsibility because such a company is not likely to be responsible for the problem even if some of its investors, as former titans of industry, were in their “other life.” The priority in such a company is that of reducing the costs of, or solving outright, an intractable societal or global problem, rather than self-blame or blaming others. This priority is why profit-seeking is regarded as secondary.


1. Rod Burylo, The Wealthy Buddhist: Buddhist Ethics, Right Livelihood, and the Value of Money (Nepean, Canada: The Sumeru Press, 2018).
2. Ibid.
3. Matt Egan, “Secretive Energy Startup Backed by Bill Gates Achieves Solar Breakthrough,” CNN Business, November 19, 2019.
4. Ibid.
5. Ibid.

Saturday, October 27, 2018

Is Corporate Governance Anti-Democratic?

Assuming all the votes cast in an election are accurately tallied, the pronouncement of the winner would seem to be straight-forward. What it means to have won, however, is considerably more complex. Specifically, is winning getting over 50% of the vote, or should a mere plurality of, say, 38% suffice? It could be argued that a super-majority of 60% or two-thirds is necessary for there to be a discernible will of the people behind the winner. To claim that 51% represents the will of the people seems a bit of a stretch, since almost half of the voters cannot be considered to be of that will. Typically, much is read (or projected) into the 1% over the 50% in terms of a mandate. All of a sudden, 51% of the voters become “the people.”  Certainly a winning plurality of 38% cannot be said to stand for or represent the will of the people, for 38% is a minority in the total votes cast. Yet in Delaware’s corporate law, which is binding for most American corporations, a mere plurality is sufficient for a candidate to be elected to a board of directors. While this arrangement is not ideal, it is a legitimate basis even if some stockholder activists beg to differ.
Writing for the New York Times in April 2013, James Stewart defines losing a board election as “more than 50 percent of the shareholders withheld[ing] their votes of approval.” Stewart expresses his amazement that 41 boards retained directors whose pluralities in 2012 were tantamount to a resounding vote of no confidence--meaning that those directors got less than 50 percent of the votes cast. According to Stewart, those directors “actually lost their elections” and yet were allowed to remain on the boards. It sounds corrupt as well as anti-democratic. “As fiduciaries, we can’t sit by and let the board make a mochery of our fundamental right to elect directors,” John Liu, New York City’s comptroller, said in reference to Cablevision Systems. As manager of the city’s pension funds, which are invested as more than 532,000 shares in the company, Liu wrote to the company concerning three directors whose pluralities were significantly less than majorities. “The fact that all three directors remain on the board suggests that one of the few rights” afforded shareholders is “illusory,” he wrote. The company’s management did not respond. Moreover it nominated the three directors for yet another term.
Although Liu is on solid ground that insiders should not be allowed to subvert director elections. However, he is wrong in his assumption that plurality voting is not legitimate under democratic auspices. Plurality simply means that the candidate with the most votes gets elected to the given seat. Were a board to turn around and award the seat to a candidate who did not get the most votes, that would be illegitimate from the standpoint of democratic principles.
The question here is not that of legitimacy. More to the point, the question regards how much of the total vote on a seat should be sufficient for the candidate with the most votes to deserve the seat from the standpoint of the stockholders. If there are several candidates and none gets the percentage deemed by the stockholders to be sufficient, then presumably a run-off would be held.
Even though a plurality is a legitimate criterion from democratic principles, it may play into the dominance that many managements have over “their” respective boards of directors.   Where there is no stockholder-nominated candidate, management’s nominee can be elected all too easily even without much stockholder approval. Even the presence of stockholder-nominated candidates would not necessarily solve the problem; management could see to it that several “stockholder-nominated” candidates spread out the anti-management vote so the management-nominated candidate can obtain a plurality. Rather than being anti-democratic, that is merely politics.
From the stockholder standpoint, the political solution would be to up the bar on the percentage of votes cast that a candidate must have in order to be elected. Put another way, the dominance in corporate governance typically enjoyed by management (unless management really screws up) could be reduced by routinizing stockholder nominations and increasing the percentage needed for a candidate to be elected.

Source:

James Stewart, “When Shareholder Democracy Is Sham Democracy,” The New York Times, April 12, 2013.

Thursday, May 31, 2018

Google Executives Evaded Jail Time in Brazil: Is Business Too Powerful?

In late September 2012, the Brazilian state police detained the head of Google’s operations in the state after the company’s management failed to act on an electoral judge’s order to remove videos from its YouTube site criticizing a candidate in a rural county election. Separately, a judge ordered Google to remove a religiously-offensive video, which had sparked riots in the Middle East, within ten days or face fines. Google’s lawyers claim that the company is not responsible for what users upload. Earlier in the year, Brazil’s government threatened the head of Chevron’s operations there with arrest and passport-confiscation after a small leak occurred in the company.

Brazil, the largest South American state.   (World Atlas) 
The Wall Street Journal goes on to note the opinion of legal analysts that no executive at Google or Chevron was likely to “set foot in jail.” Brazil’s appeals process is long, and companies like Google and Chevron have deep pockets for legal defense. Consequently, even business practitioners convicted of major white-collar crimes are rarely, if ever, jailed in Brazil. Even so, the threats could thwart the South American state from being able to attract foreign direct investment. In other words, competition for foreign companies gives governments an incentive to look the other way in enforcing state law. Put another way, the lowest common denominator in terms of holding corporations accountable on the constraint of law and order could be one of the consequences of the spread of capitalism around the world. No public official wants to risk turning a potential “job creator” away.
Especially with the separation of ownership and control in the modern corporation, managerial accountability is crucial to ensuring that corporations abide by judicial orders. In many cases, senior managers can get away with making corporate-policy decisions that essentially ignore the constraints manifesting as judicial orders because deep corporate pockets can pay any resulting fines. Senior executives can be rather “free-wheeling” on corporate policies because the officials themselves—as citizens—are not subject to fines or imprisonment.
Corporations are not citizens; rather, the associations are creatures of the state created for particular purposes. Therefore, it can be said that the citizens operating the associations can and indeed should be held criminally liable for any “corporate” wrong-doing. Put another way, the actual decision-makers should be held accountable criminally for any decisions that violate a law or a judicial order. Otherwise, “corporations” can evade the law while their managers have little incentive to treat it as a constraint on profit-seeking.
Corporations do not act apart from the human beings within. An association just is its members. The people responsible for a “corporate” decision that violates the law can at least in many cases be identified, even if as scratched initials on the margins of a policy proposal. In fact, the police could charge a corporate official whose role the offending policy falls under even if that official had been negligent in not having kept up on the decision made by his or her subordinates. So coverage of responsibility is something that can be applied to particular people within the management of a company. Such coverage, if resulting in real jail time, would doubtless get managers’ attention rather quickly, as opposed to merely fining a company’s treasury. Unfortunately, Brazilian officials had a disincentive to implement such coverage with consequences with teeth, due to the countering pressure to attract businesses rather than repel their decision-makers.
Lest it be thought that creating an international body with the power to imprison executives of MNCs for crimes against an international code, the problem of how to enforce Brazil’s law on an international organization (e.g., Google) would go unanswered. One “consensus” global code would not touch on the regional and local specificities in criminal law. That people in Brazil were offended by a video does not mean that a global consensus would necessarily emerge in favor of criminalizing the video. For one thing, some governments support free speech even on opinions that are offensive to a majority.
The problem can be said to be that of cultural particularity vs. economic globalization. Both are viable and thus must be recognized. Multinational corporations must legally at least be multi-domestic in responding to cultural-legal particulars even while being the instruments of efficient international competition. Both values are legitimate, and yet they are in conflict at least in terms of the enforcement of local law. Statesmanship on behalf of such law even at the risk of losing a potential foreign business investing in local jobs is unfortunately all too rare, given the countervailing greed involved in attracting suitors away from other potential hosts.
All too often, leadership is gloss for greed rather than based on standards and principle. Put another way, the “principle” of efficient comparative advantage is often used by self-promoting governments as a means of obfuscating the real selling-out of the country’s own laws, which in turn ideally reflect moral values that are held by society. The question is perhaps whether governance structures geared to real accountability for business practitioners can be designed to counter the hegemony of greed over principled leadership. The political influence of the practitioners and their respective corporate treasuries over the governance itself—the creature coming to dominate its Creator—compounds the difficulty and suggests that it is no accident that corporate executives rarely see jail time.

Source:

Jeff Fick and John Lyons, “Google’s Brazil ChiefDetained; Court Bans Anti-Islam Video,” The Wall Street Journal, September 27, 2012.

Monday, March 19, 2018

The Founder of Theranos: A Flawed Charismatic Vision and Leader

“Theranos rose quickly from being a college dropout’s idea to revolutionize the blood analysis industry to a hot tech bet that accrued $700 million in funding and many famous names for its board.”[1] Elizabeth Holmes, the company’s founder, was stripped of her position at the company in 2018 after the SEC discovered her deep involvement with the fraud at the company. Her “smarts, fierce determination and Steve Jobs-inspired look . . . were critical” to her being able to perpetuate the lie that the company had a device that could do blood tests with just a scant amount of blood, obviating the unpleasant experience of having blood drawn by needle.[2] Although Jack Welsh, Bill Gates, and Steve Jobs accomplished enough to warrant their fame, I submit that companies are too prone to create “champions”—even strangely calling them “rock stars.” In other words, even though charismatic vision is of value to a business, neither such a leader nor his or her vision itself should be overplayed. Business, I submit, has a marked tendency to do just that, and often with impunity.


On leadership vision, see Skip Worden, The Essence of Leadership: A Cross-Cultural Foundation


[1] Marco della Cava, “Behind the Scenes of Theranos’ Dramatic Rise, Fall,” USA Today, March 16, 2018.
[2] Ibid.

Saturday, February 17, 2018

Off Target: Corporate Spending as "Speech" against Gay Rights

In a 5-4 decision on January 21, 2010, the US Supreme Court ruled in Citizens United that federal restrictions on corporate spending in elections constituted a violation of free speech. Critics called it wrong to equate corporate “speech” with individual speech and said the ruling would allow special-interest money to flood election campaigns. The bipartisan nature of the opposition to this ruling is striking in these largely partisan times. The court’s ruling is opposed, respectively, by 76, 81 and 85 percent of Republicans, independents and Democrats; and by 73, 85 and 86 percent of conservatives, moderates and liberals. Majorities in all these groups, ranging from 58 to 73 percent, not only oppose the ruling but feel strongly about it. Even among people who agree at least somewhat with the Tea Party movement, which advocates less government regulation, 73 percent oppose the high court’s rejection of this particular law. In addition to overwhelming opposition to the decision, there’s also bipartisan support for Congress to try to reinstate restrictions on campaign spending by corporations and unions.

So when Target sent a check for $150,000 to MN Forward, a Minnesota-based political group backing a gubernatorial candidate with penchant for opposing gay rights, people wondered what business Target has in taking sides on that issue, even if the group was also pro-business. MN Forward endorsed and was paying for ads for the Republican gubernatorial candidate Tom Emmer. On Emmer’s website he defines marriage as a “union between one man and one woman” and he has come under fire for his $250 contribution to a Christian rockband that has been known to speak harshly of gays. Emmer told the Minnesota Star Tribune that the controversial rock band “You Can Run But You Cannot Hide,” were “nice people,” following band member Bradlee Dean’s reported comments that Muslim countries that support execution of gays are “more moral than even the American Christians.” To be sure, the managers of Target were not spending their companies’ “free speech” in defense of such a view, but that the wealth qua free speech was nonetheless being spent on a candidate who had made such a comment makes the Target CEO an unwitting accomplice.
Rather than viewing Target managers distancing themselves from Emmer’s view of gays as corporate social responsibility, I contend that the problem lies in taking spending as speech. Put another way, Target would have better stores if it sticked to its knitting, as it were.

Diverting money even to political campaign groups that further a pro-business agenda is off from the business’s main business, which in the case of Target is to sell retail. Besides the collateral damage from unwittingly helping campaigns on issues that are not even pro-business, diverting cash reserves to political campaigns puts corporations in the business of electoral politics, which is another sort of retail. In the case of Target, it is not as though the stores could not be improved from a business standpoint.  Once I accompanied a foreign friend of mine to a Target to return the coat he had given his wife for Christmas. Because he had paid by check, he had only the option, according to the “customer service” employee, of exchanging it. He could not get his money back—though he could have had he paid cash or by credit card. The “reasoning” of Target’s managers was that a check is “like kind” to an exchange voucher.  My friend and I left the store committed not to return, and I have not. Even in terms of influencing electoral politics in a pro-business general direction, Target’s management has plenty else to do closer to home—if indeed it is a home.  Rather than being socially responsible, a company ought to focus on its knitting.  That—doing business well—is the responsible thing to do because it is what a business’s owners expect from the managers of their property. Rather than being able to influence electoral politics beyond their expertise, managers ought to be restrained more by stronger corporate governance. To be sure, managers have a tendency to over-reach. Treating their spending decisions as “speech” only enbles them.

Sources:

http://blogs.abcnews.com/thenumbers/2010/02/in-supreme-court-ruling-on-campaign-finance-the-public-dissents.html

http://abcnews.go.com/Business/target-best-buy-fire-campaign-contributions-minnesota-candidate/story?id=11270194

Thursday, January 11, 2018

Executive Compensation (Part II): Paying Failure

In late September 2011, Léo Apotheker was fired after 11 months as CEO at Hewlett-Packard. As a reward, he walked with $13.2 million in cash and stock, in addition to a sign-on package worth about $10 million, according to the New York Times. A month earlier, Robert P. Kelly received severance worth $17.2 in cash and stock when he was fired as CEO of Bank of New York Mellon. Even his clashing with board members and senior managers did not obstruct his nice severance package. A few days later, Carol Bartz was let go as CEO of Yahoo with nearly $10 million in spite of the company’s poor performance. Back in April 2011, John Chidsey, the CEO of Burger King, had departed with a severance package worth almost $20 million in the fact that McDonalds had been outcompeting Burger King. Baxter Phillips, the CEO of Massey Energy, got a package worth over $34 million in spite of “presiding over a company barraged with accusations of reckless conduct and with legal claims stemming from one of the deadliest mining disasters in memory,” according to the New York Times. Unfortunately, the list goes on and on. Is this a system of pay-for-failure? Moreover, do chief executives, who seem to outward appearances to be almost exclusively motivated by what they can get in additional compensation, have too much leverage over boards, and thus over even the owners as well? If so, is corporate governance itself severely broken? I answer in the affirmative.

“We repeatedly see companies’ assets go out the door to reward failure,” Scott Zdrazil, the director of corporate governance at a major bank’s investment fund that sought to tighten the restrictions on severance packages at three oil companies in 2010. He claims that investors are frustrated that boards of directors have not prevented such windfalls. Even the Dodd-Frank financial reform law has its mandated “say on pay” stockholder votes on a non-binding basis. It is as though stockholders have given up their property rights in favor of the “rights” having been taken or assumed by their agents—the directors and upper echelon managers. It is as though the business judgment rule trumps property rights even where the compensation of executives who typically control their boards is at issue. The conflict of interest here is extraordinary even as it is assumed to be obviated by the fiction of board independence from management. To be sure, a board of directors is supposed to hold management accountable.

Don’t look to public policy to shore up the property rights of stockholders any time soon. Eric Dash of the New York Times avers that the Obama administration “seemed to lose its bully pulpit for compensation reform after most of the nation’s biggest financial companies repaid their government loans.” Never mind that the administration allowed at least four of the mega-banks to repay early based on the bankers’ desire to avoid limitations on their own compensation.

The bottom line is that CEOs are not really all that interested in serving the owners of the companies; the top executives are primarily interested in their own gain, be it in terms of position/power or compensation. Structuring the latter in stock options with vesting periods and looking to outside directors for accountability are not sufficient checks on the single-minded pursuit of CEOs of their narrow self-interest. Even when a bank is in dire circumstances, such as Merrill Lynch was on September 15, 2008, a CEO can be obsessed with “letters”—statements on his or her compensation (as well as that of other top execs) being honored by the acquiring company.

As negotiations dragged on into the wee hours of Monday morning, Ken Lewis of Bank of America was utterly disgusted with John Thain’s fixation on what he and others at Merrill would get as bonuses (for a year of losses, by the way), even as Merrill and its stockholders held in the balance after midnight (when Lehman filed for bankruptcy). Lewis could only look over at Thain and think to himself, The only thing these Wall Street guys are concerned about is themselves. Even in the midst of a financial system collapse, Thain was focused on getting what he thought he deserved in spite of the huge losses. In fact, he had put off even talking to Lewis at Bank of America—repeatedly rebuffing his president’s (Fleming) lobbying—because the CEO did not like the idea of having to work for Lewis! Do you suppose the Merrill stockholders wanted to risk their entire investment in the bank because Thain didn’t want to end up working for someone else? The board of directors left the contingency plans up to him, so he didn’t have to worry about any pressure to start merger talks. Merrill’s stockholders were at best an afterthought to him, and yet the directors, who had been elected by the owners, had hired him. The eventual $29 per share price, by the way, was a result of Fleming’s negotiating for the stockholders; Thain was still looking for a line of credit from Goldman—risking an entire loss to stockholders so he could retain control of Merrill rather than turn it over to Lewis.

Even after Merrill Lynch had announced a $5.1 billion loss ($5.56 per diluted share) for the third quarter of 2008, Thain was insisting on a cash bonus of $40 million. Fleming and McCann were to get $25 million, while two other senior managers would get $15 million a piece. Thain subsequently admitted that a $20 million cash bonus for himself would be more "realistic." Given Merrill's losses in 2008 and the fact that the bank had to be sold, it is crazy that any cash bonuses would be paid for any senior manager. Thain's suggestion to the board's compensation committee that the bonuses be viewed as "success fees" for the top managers' efforts in putting together the sale of Merrill to Bank of America is nothing less than bizarre, if not comical. Failure as successs? What planet was Thain from? That a man like him ever got to be the CEO of a major bank (one too big to fail!) suggests that major flaws exist in how business practitioners view and value leadership and in how corporate governance is designed and operates.

When times were good, the finance crowd had lauded Thain as a “superman” for modernizing the NYSE. The business world tends to invent “superheroes”--even calling them rockstars!--while ignoring the more ignoble underbellies of its idols. In other words, leadership is worshipped without any clear grasp of the leaders' real contributions, while failure at the top is generally underplayed or ignored, at least financially speaking. This lack of proportion and balance is not by accident, as it is fully in the financial interests of the so-called "leaders." As for the followers and bystanders, these incredulous groupies--retarded court jesters wearing grizzled suits--happily allow themselves to get played as fools. They are dominated, not led, for the weak can dominate but not lead the herd animals.

Besides pointing to the utter bankruptcy and banality of business leadership, the case of Thain demonstrates that the system of corporate governance in the U.S. is broken even as it continues on as the status quo. Sadly, stockholders as a group are severely over-exposed to risk as a result. As long as top executives get what they believe they are worth, they will see to it, in a “by the way” fashion, that stockholders do not lose everything, but is this enough? Must stockholders (and society itself) settle for this? Are they even aware of the risk to their wealth as CEOs risk all to make sure they are taken care of? In academic terms, the system of corporate governance is incurring huge agency costs, yet I suspect we (and stockholders) are blind to their magnitude. As a society, Americans have a bad habit of taking the word of vested interests, who get away with making excuses or simply opining that there is no problem, after all. We assume that executive compensation is set by the invisible hand of the marketplace because it is in the executives’ financial interest that we take this bait and swim along with it in our gullible mouths. We are like fish that do not even realize that there are hooks in our mouths!

It does not occur to us, or to stockholders, that competent managers are out there who would gladly take top management positions for much, much less. Corporate executives have engineered a coup of sorts, having separated ownership from control at the expense of stockholders and even systemic risk in the financial system. The suits have even captured the government, such that stockholder votes on compensation are legally non-binding. This is not the invisible hand connecting demand and supply in the labor market; rather, it is a result of a rich velvet coup under the subterfuge of capitalism and democracy—with the electorate completely beguiled. Let’s not pretend this is the free market doing this, or that the governments in the U.S. are oriented to protecting the interests of stockholders and the public at the expense of the corporate managerial class.
Sources:

Eric Dash, “The Lucrative Fall from Grace,” New York Times, September 30, 2011. 

Gred Farrell, Crash of the Titans (New York: Crown Business, 2010). On Thain's bonus, see chapter 16.

Monday, October 23, 2017

On the Unfairness of the Bonus System on Wall Street

Craig A. Dubow, Gannett’s former chief executive, had a short six-year tenure that was, by most accounts according to The New York Times, “a disaster.” David Carr reports: “Gannett’s stock price declined to about $10 a share from a high of $75 the day after [Dubow] took over; the number of employees at Gannett plummeted to 32,000 from about 52,000, resulting in a remarkable diminution in journalistic boots on the ground at the 82 newspapers the company owns. . . .  the company strip-mined its newspapers in search of earnings, leaving many communities with far less original, serious reporting. . . . Not only did Mr. Dubow retire under his own power because of health reasons, he got a mash note from Marjorie Magner, a member of Gannett’s board, who said without irony that ‘Craig championed our consumers and their ever-changing needs for news and information.’ But the board gave him far more than undeserved plaudits. Mr. Dubow walked out the door with just under $37.1 million in retirement, health and disability benefits. That comes on top of a combined $16 million in salary and bonuses in the last two years.”

Besides the inherent unfairness in an incompetent manager getting millions of dollars in compensation (for championing incompetence?), it is morally problematic when, as Carr puts it, “the consequences of bad decisions land on everyone except those who made them.” As already pointed out above, in the midst of Dubow’s “championing” (this word is so broad it has scarce any real meaning), “the number of employees at Gannett plummeted to 32,000 from about 52,000.” One could just as easily point to Bank of America’s downsizing of its labor force in the wake of Ken Lewis’ shopping spree at Countrywide and Merrill Lynch. Lewis really did exemplify the “walmart” mentality applied to banking: an almost-complete indifference to quality in a desire to be everything to everyone. The “exporting” of bad consequences while exuberant rewards are retained indicates that the corporate executive compensation system in the United States is fundamentally broken. The fixation on aligning an executive’s incentives with the financial enrichment of the stockholders has not functioned as anticipated.

For one thing, the vesting of stock, which is meant to orient an executive to the longer term financial interest of the stockholders, is typically bypassed as an executive gets the equivalent in cash (or stock) from his or her new employer. An executive can thus discount having to look out for the eventual downside in his or her decisions.

Moreover, the sheer amount of the compensation cannot be justified on the basis of a competitive upper echelons labor market (which functions more like an oligarchy). Indeed, the degree of fixation on the bonus system alone has resulted in larger payouts (as executives make decisions primarily from the standpoint of the impact on their bonus). David Carr points to the excess as mentioned in a USA Today editorial: “The bonus system has gone beyond a means of rewarding talent and is now Wall Street’s primary business. Institutions take huge gambles because the short-term returns are a rationale for their rich payouts. But even when the consequences of their risky behavior come back to haunt them, they still pay huge bonuses.” Carr’s overall point is that this hypertrophy allies to corporate America—not just Wall Street, though certainly it is salient there too.

When John Thain of Merrill Lynch gave lip-service to serving the stockholders, even his own subordinates knew he was more concerned with having to play second fiddle to Ken Lewis at Bank of America than with keeping Merrill’s stockholders from losing everything (as Lehman Brothers’ stockholders did). Even as Fleming got $29 per share as a buyout price from Lewis, Thain preferred a line of credit of billions from Goldman Sachs in exchange for a 10% ownership that would keep Thain on top. That was Thain’s driving motivation: to remain CEO. Meanwhile, the general public assumed that CEOs, including Thain, were motivated to act in their stockholder interests—that boards of directors insisted on this agency. However, where a CEO is focused on his or her bonus (Thain insisted on $40 million cash bonus even as Merrill was losing billions) and position (and thus future bonuses) and the CEO controls “his or her” board, the stockholders are in actuality left unknowingly fluttering in the wind—relying on a system of executive compensation that supposedly aligns the executives’ motivation with the financial interests of the stockholders. Much too much is being assumed here, yet assumptions, like habits, are difficult to break.


Source:

 David Carr, “Why Not Occupy Newsrooms?” The New York Times, October 24, 2011. http://www.nytimes.com/2011/10/24/business/media/why-not-occupy-newsrooms.html

Wednesday, June 28, 2017

E.S.G. in the Boardroom: A Recipe for Confusion

What would business do without its faddish buzzwords? Is the bottom-line really so boring? Transformational leadership was once in vague, with little actual attention to raising subordinates’ moral compasses. Decades later, everything was about drivers—a power-aggrandized version of cause. Then consultants, dreaming perhaps of their kids’ little league, turned the profession into an analogy and suddenly became coaches. One difference is of course that most actual coaches have been players in their respective sports, whereas how many leadership coaches have been business executives or sat on a board? “Leadership assistant” is better, if in-house, otherwise "leadership adviser," assuming sufficient study or experience in leadership. Then amidst global warming and activist stockholders, “E.S.G.” could suddenly be heard in boardrooms with the frequency of a trope.[1] Must business be led by a herd-mentality? Such leadership is internally inconsistent, for leaders are by definition ahead of the crowd, leading it rather than squawking like lemmings. In the case of E.S.G., which stands for “environmental, social, and governance,” the chatter eclipses recognition of the befuddled condition of the combo. With such different things in the mix, it is no wonder that a study attempting to quantify E.S.G. came up with mixed results. So the metric and purportedly related financial performance may not be very useful, after all.

E.S.G. “refers to the three main ways to measure a company’s commitments to ecological sustainability, to its community and to corporate governance.”[2] Large institutional investors, including BlackRock, the world’s largest asset manager, “have publicly declared . . . environmental, social and governance issues to be key metrics of their investment decisions.”[3] Although politically correct, this mantra has some rather severe drawbacks.

Firstly, what exactly is social? Good interpersonal relations inside a company?  Stable bilateral relations with key stakeholders (which sounds hardly social in nature)? Good relations with the towns and cities in which a company has a physical presence? Work on behalf of world peace? The term community is inherently such a vague notion, and it be applied to very different scales, from inside a factory to the world, that the social part of E.S.G. is problematic, especially when misplaced efforts to quantify “community” are involved. What may seem social could actually be economic, especially in stakeholder management. Also, having or being part of “community” is different than a corporate social responsibility program geared to alleviating a problem affecting employees, stakeholders, a city, or the world. This last point also applies to ecological sustainability—does this refer to a company’s own carbon footprint, or can a company get away with making financial contributions to Green Peace?

The second major problem is how different social and even ecological matters are from good corporate governance. A company’s board could improve accountability on management by severing the CEO from also chairing the board, but this does not mean that the same board has an ecological bent or wants to create a social responsibility program or give employees a sense of community (conditional, of course, given the power to fire). In short, E.S.G. combines apples with oranges. Not unexpectedly, they can relate differently with respect to financial results. Improving accountability structures and processes on management are more tightly connected to medium- and long-term financial performance than is working on a city’s problem, for instance. Improving stakeholder relations goes to the bottom line more than working for peace in the world. To be sure, the value of working on societal or global issues is real, and investors so motivated need not be thwarted by a loose relation to financial profits. The problem lies in combing E., S., and G. into a single measure and related it to financial performance.

A study by quantitative strategists at Bank of America—that bank that showed questionable smarts in buying Merrill Lynch—found mixed results in relating E.S.G. companies and profits. On the one hand, companies high in E.S.G. tend to have less volatile stocks, yet whether those companies outperform low E.S.G. companies, the answer depends on the industry. In health-care, technology, and consumer staples, the low companies actually outperformed the high ones from 2005 to 2015. In fact, the results generally were “very similar to the performance of large versus small companies.”[4] A mere look at the grab-bag of indicators demonstrates just how meaningless an overall E.S.G. number is. The study relied on a scoring system devised by Thomson Reuters, “which graded companies based on emissions and resource reductions, human rights, community engagement, work force diversity, training and development plans, board structure and compensation policy, and shareholder rights, among other things.”[5] Imagine quantifying human rights and board structure into one number!  It is as if the folks at Thomson Reuters were trying to come up with the general equation that so eluded Einstein relating the general theory of relativity to quantum mechanics! 

I submit that E.S.G. is an unstable molecule that would better serve business and society by being broken up into its component parts—its elements, each of which could be assessed, whether qualitatively or quantitatively. Some investors may want to invest in companies with a strong human rights record, while other investors may put a lot of emphasis on qualitative strength in corporate governance. Even within the social category, institutional investors could have very different things in mind—from workforce diversity to global warming. To be sure, investors could look for companies with diverse workplaces, no corporate social programs, and good corporate governance, or good relations with cities and good governance but no CSR programs to speak of—or all three. In short, the supposed positive correlations in E.S.G. do not hold in actuality even if it can be said that environment, social, and governance all have ideals. This is perhaps the underlying problem: the fallacy that says that just because x, y, and z have top values, the three variables are positively correlated. The other fallacy involved insists that everything in or affecting business can be readily or accurately quantified as if life itself were a spreadsheet. If investors really want companies to come out of their shells, it is vital to think beyond well-hooved business metrics and fads.





1. Andrew Sorkin, “Can Good Corporate Citizenship Be Measured,” The New York Times, June 26, 2017.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.

Thursday, April 27, 2017

Stockholders Retain Wells Fargo’s Board: A Low Bar for Corporate Governance

Corporate governance is supposed to hold management accountable. Slack in the mechanism enables not only a lack of managerial competence or ethics, but also an ineffectual board. Unfortunately, whether by proxies or connections—or just sheer power—a board’s chair and other directors can remain in place in spite of having failed to hold a management accountable. Put another way, it is not necessarily enough that an incompetent or unethical management (and other employees) is removed; replacing the derelict board may be more crucial and yet even more difficult.

 On April 25, 2017, the stockholders of Wells Fargo voted to retain the board that had oversight-responsibility while the management created millions of fake accounts. Even though 5,300 employees and the CEO, John Stumpf, lost their jobs due to the systemic fraud, 56% of the stockholder vote went in favor of retaining Stephen Sanger, the board’s chairman. Even though press referred to that as “a stinging rebuke for his failure as lead director,” the fact that he won re-election would hardly be felt by him as a rebuke.[1] That the perception would be otherwise signals just how low the bar had dropped on corporate governance. That the entire board survived intact is more important than that five of its directors failed to clear “the 70 percent threshold that typically denotes a serious protest vote.”[2] Clearly a “protest vote” is not worth much if the entire membership of such a negligent board is retained.

On account of the collusion that can occur between a management and the board tasked with overseeing that management, combined with the existing low bar in corporate governance generally, the system can ill-afford the proxy mechanism; the system is too tilted in favor of even sordid managements and board directors. Additionally, corporate social responsibility could be widened to include stockholder voting. At the Wells Fargo vote, Warren Buffett’s Berkshire Hathaway voted its 10 percent stake in favor of retaining the entire board. Even if retaining it was in Buffett’s company’s best financial interest going forward, there would be value societally and even in terms of fortifying corporate governance, which I submit would be good for business, were investors such as Warren Buffett willing to vote in favor of cleaning a sordid or ineffectual slate even if its members promise to do better. In other words, stockholders would strengthen corporate governance itself, as well as the particular companies even financially—and thus the stockholders themselves!—were they to vote to hold derelict boards accountable for bad oversight even if said boards convince stockholders of better financials ahead. Resisting such a narrow impetus can be said to be within the realm of corporate social responsibility because it is in the public interest and in line with societal norms that corporate boards actively hold their respective managements accountable even for past behavior or performance. Giving boards a pass is just as bad as a board giving its management a pass. If a narrow pursuit of financial gain comes at the expense of fortifying governance systems, then such gain is likely to be short-lived anyway because defective systems enable bad management with ineffective oversight. Fiduciary duty suffers. So, ironically, it is a matter of social responsibility that managements are held accountable, as are their respective boards themselves. Hence public policy toward reducing the power of board-management collusion is in the public interest, and corporate social responsibility should be expanded to include stockholder activism with an eye toward reforming corporate governance itself.   



[1] Antony Currie, “Wells Fargo Should Listen to Investors and Step Down,” The New York Times, April 26, 2017.
[2] Ibid.

Saturday, October 29, 2016

An Anti-Obesity, Anti-Poverty Philanthropist Joins PepsiCo.’s Board: A Case of Reform from Within

In October 2016, Darren Walker, president of the Ford Foundation, became the newest member of PepsiCo’s board of directors. Whereas Walker worked at the time for a more just and equitable society, Pepsi was making the bulk of its money by selling sugary drinks and fatty snacks and there being a well-established link between obesity and economic inequality. Would he be working at cross-purposes? “There’s a risk that he will be viewed as inconsistent,” said Michael Edwards, a former Ford Foundation executive at the time.[1] The company itself could also be viewed as being inconsistent—lobbying against anti-obesity public-health legislation while putting Walker on the board of directors.

To be sure, the Ford Foundation had not funded organizations working to combat obesity or diabetes, so there does not seem to be a direct conflict of interest for Walker.[2] Yet he did acknowledge, “I know that my own credibility and the credibility of the Ford Foundation is tied to this decision. Those of us in philanthropy have to be discerning about the corporate boards we join, and be discriminating to ensure that our service on a board is aligned with our values.”[3]

So rather than there being a conflict of interest, the issue for Walker was whether he could act as a reformer from within. Even though he planned bring the perspective of a social-justice organization and his own perspective “as someone who is deeply concerned about the welfare of people in poor and vulnerable communities,” he would still bear responsibility should PepsiCo’s board go in another direction.[4] He would not, in other words, be chairman of the board. That the company had just pledged to further reduce the amount of sugar, fat, and salt in its products by 2025, however, suggests an appetite for accommodation with Walker’s perspective. Additionally, Walker would not be responsible for the company’s past unethical lobbying against anti-obesity legislation, use of unethical suppliers of palm oil, and deceptive marketing, and the company had since taken steps to remedy these ethical problems.[5]

As in politics, the matter for Walker and the other board-members concerning would be whether together they could wield compromises taking into account both Walker’s vantage-point and the legal and ethical fiduciary duty to act as faithful stewards of the stockholders’ capital. Reform from “the inside,” moreover, can be more productive than merely staying in the philanthropic sphere. In terms of American politics, the analogue would be moving from the Green Party, for instance, to the Democratic Party so as to work toward reform that could actually manifest in legislation. Admittedly, idealism is tested in such a strategy, but consequentialism tells us that even 50% of 10 is more than 0% of 10.


1. David Gelles, “An Activist for the Poor Joins Pepsi’s Board. Is That Ethical?,” The New York Times, October 28, 2016.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.