Bass, Berry & Sims attorney Scott Bell was quoted extensively in an article published by Fortune discussing strategies for company boards to navigate activist shareholders as their influence continues to rise.
Scott said that while large-cap companies “used to be like some huge, Jurassic, sauropod dinosaur” that were once too big for activists given the vast sums needed to build a stake, activism is now omnipresent. “Those kinds of large-cap campaigns have gone up in recent years.”
One factor in this increase is the “democratization” of activist investing. “In the past couple of years, we’ve seen a huge growth in first-time or relatively inexperienced activists, or shifts from private equity into the realm of activism,” Scott said.
“It doesn’t matter how big your company is, and there’s a limitless number of potential activists out there,” he explained. “Any company, at any time, can get tagged with one of these engagements.”
Scott suggested that the board’s role is to sort out an activist’s good-faith, well-informed arguments from their other ones. “It’s important not to get sucked too deeply into the tit for tat with an activist. Shareholders like to see responsiveness from their board, but they don’t’ want to feel like the board is becoming obsessed with the battle or taking it too personally.”
While the ubiquity of activists is certainly on the rise, Scott advised that boards could have success fending off activists if they “cultivate and maintain good relationships with your investor base as an ordinary course-of-business item.” This can be a difficult ask but it pays off when an activist criticizes the company. “Your credibility with investors when you’re trying to make your case in an actual proxy contest, for example, is going be a lot greater if they know the company well, they feel like they have a voice in the boardroom already, and you’ve heard and maybe incorporated their concerns into what you’re doing,” Scott said.
One hot area of activism relates to environmental and other ESG-themed arguments, both valid and otherwise. “Again, the best defense will be lowering your vulnerability by maintaining good ESG practices and reporting, and a good dialogue with shareholders about this stuff before an activist shows up,” Scott said.
“Activists are always finding new ways to attack companies and push for new things,” Scott concluded. The blurring line between traditional activist hedge funds and private equity firms presents greater concerns as the latter can lead to takeover bids and purchasing increased stakes. “It all increases the feeling that it could come from anywhere at any time.”
For the full article, “How to Handle Activist Investors,” was published by Fortune on October 7 and is available online.