Tag Archives | disclosure

Jill Fisch: Index Funds Investors Can Switch

Jill Fisch, et al. addresses a central myth around index funds and investors in Passive Investors (June 29, 2018). Her research has implications applicable to recent analysis and recommendations by Delaware Supreme Court Chief Justice Leo E. Strine Jr., Professor Lucian Bebchuk and others.  The following is the central highlight:

Our key insight is that although index funds are locked into their investments, their investors are not. Like all mutual fund shareholders, investors in index funds can exit at any time by selling their shares and receiving the net asset value of their ownership interest. This exit option causes mutual funds – active and passive – to compete for investors both on price and performance. While the conventional view focuses on the competition between passive funds tracking the same index, our analysis suggests that passive funds also compete against active funds. Passive fund sponsors therefore have an incentive to take measures to neutralize the comparative advantage enjoyed by active funds, that is, their ability to use their investment discretion to generate alpha. Because they cannot compete by exiting underperforming companies, passive investors must compete by using “voice” to prevent asset outflow.

In the case of Strine’s concerns with political contributions, use of “voice” would be voting in favor of measures requiring shareholder approval or at least transparency of political contributions. While Strine’s paper was based on actual behavior, Fisch points to potential, if funds operate logically. The potential for “voice” to ensure competitiveness with active investors also addresses, at least in part, some of Bebchuk’s concerns.

Fisch also points out in another paper (Shareholder Collaboration) that passive investors are increasingly engaged in information production of their own, not “just as ‘reticent’ supporters of initiatives undertaken by activist hedge funds.” Because of their size, huge passive index funds often cast deciding votes. Because of their market-wide focus, they often have information the firm insiders do not have. In many cases the potential rewards for index funds can be disproportionately high, compared to their investment in time, since they typically hold a significant portion of the outstanding stock at most large firms.

Fiduciary obligations are complicated.  “Mutual funds’ fiduciary duties require them to vote in a manner that benefits their investors, not each company that they hold in their portfolio.” (Passive Investors) For example, holding both target and bidder might lead to a different vote than holding only one.

Most troubling was the following:

Delaware law provides shareholders with the right to vote their shares as they see fit and does not impose any obligation on shareholders to vote unselfishly or to further the economic interests of the corporation. [See, e.g., Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Ringling, 53 A.2d 441, 447 (Del. 1947) (“Generally speaking, a shareholder may exercise wide liberality of judgment in the matter of voting, and it is not objectionable that his motives may be for personal profit, or determined by whims or caprice, so long as he violates no duty owed his fellow shareholders.”).]

Given that funds operate within such a weak standard, it is important that individuals, the real Main Street investors in index funds, have ready access to voting records in an easily compared format. Keith L. Johnson, et al., point out the importance of fiduciaries conducting “congruity analyses of proxy votes” with public statements statements by delegated fund managers.

As an example of how such potential inconsistencies might present, BlackRock states in its Investment Stewardship 2018 Annual Report, “During our direct engagements with companies, we address the issues covered by any shareholder proposals that we believe to be material to the long-term value of that company. Where management demonstrates a willingness to address the material issues raised, and we believe progress is being made, we will generally support the company and vote against the shareholder proposal.” (Emphasis added.)

On the surface, this stated practice of voting against shareholder resolutions that have been determined to be in the best interests of the company suggests there is a preference for supporting management over the interests of clients in improving company performance as soon as practical. The resulting disconnect between value creation and proxy voting sends mixed signals to clients, the company and the marketplace. It could have the practical effect of giving companies more room to ignore or delay value enhancing actions.

Fisch argues that index fund investors can switch and some can. However, many employer sponsored 401(k) and other plans provide few choices. Main Street investors are often, as Strine notes, “forced capitalists.” If their 401(k) plan administrators take little or no initiative to investigate potential conflicts or breaches of fiduciary duty, how would they know? Like index funds themselves, the only tool “forced capitalists” might have is “voice.” However, like index funds, they need information before they can voice concerns.

Under the current system, proxy votes only need to be disclosed once a year and can be in a format that makes sorting and analysis difficult. More frequent, transparent and user friendly proxy voting records would make it easier for employees to argue for investment options better aligned with value creation. Such information would also make it more difficult for employers to ignore their fiduciary duties.

Real-time, or close to real-time, proxy voting disclosures using an internet window into each fund’s existing proxy voting platform would facilitate the ability of Main Street investors, the beneficial owners, to hold companies accountable through the complex chain of ownership. Several public pension and “socially responsibe” mutual funds have made such disclosures for many years. (See an incomplete list in our Shareowner Action Handbook.)

I will address more of the rationale and benefits of “real-time” disclosure in an upcoming post. Check back or subscribe to email notifications.

   

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Trump’s LL Bean Political Contributions

LL Bean LogoDo not make the same mistake as LL Bean. The last thing I want is to turn CorpGov.net into another social media outlet on Donald Trump. However, the advice offered today by Bruce Freed, president of the Center for Political Accountability (CPA), is something public company boards should be discussing as they try to stay on the good side of President-elect Donald Trump, without being ethically challenged.

While, the advice flowed out of the controversy over President-elect Donald Trump’s endorsement of LL Bean following a contribution to a political action committee supporting Mr. Trump from a Bean family member, it closely tracks advice CPA has been giving for years.  Continue Reading →

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#ICGN16: Part 1

#ICGN16

#ICGN16 was the hashtag for tweeting about the 2016 annual meeting of the International Corporate Governance Network held in San Francisco, June 27 – 29th, 2016. Check Twitter for additional posts to #ICGN16. What follows are a few of my rough notes from the conference. Accuracy for details isn’t one of my noted strengths, so I’m tempted to say the notes are for entertainment purposes only but I do hope readers will get some sense of the proceedings.

#ICGN16: PreConference Rethink of ‘One Share, One Vote’

Even before the ICGN16 (International Corporate Governance Network annual conference) met in San Francisco last month, two prominent former board members kicked off lively debate by proposing a radical rethink of what has been a guiding principle for many in the movement for good corporate governance. Peter Clapman and Richard Koppes argued in a WSJ opinion piece that longterm shareholders should have greater voting rights.

…the shareholder-rights agenda has been largely achieved. Only 10% of S&P 500 boards are classified today, while some 90% are elected by majority vote. Only 3% have a poison pill in force. More than 35% of S&P 500 companies have adopted proxy access… 

Richard Koppes

Richard Koppes

Peter Clapman

Peter Clapman

Activists increasingly demand board representation to implement their agenda, often meaning that short-term investors take and quickly relinquish boards’ seats. Boards frequently settle with activists out of fear of losing a proxy battle—or worse, winning a Pyrrhic victory. (Time to Rethink ‘One Share, One Vote’?)

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Lobbying Disclosure Sought by Investors

lobbying disclosureLobbying disclosure is sought by shareholder resolutions filed at 50 companies by 66 institutional and individual investors.

Corporate lobbying disclosure remains a top shareholder proposal topic for 2016. At least 66 investors have filed proposals at 50 companies asking for lobbying reports that include federal and state lobbying payments, payments to trade associations used for lobbying, and payments to any tax-exempt organization that writes and endorses model legislation. Political activity remains a top investor topic for the sixth consecutive year, with more than 90 proposals filed for 2016 that seek disclosure of either lobbying or political contributions. Continue Reading →

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FedEx: How I Voted – Proxy Score 38

FedExFedEx Corporation (NYSE:FDX) provides a portfolio of transportation, e-commerce and business services under the FedEx brand and is one of the stocks in my portfolio. Their next annual meeting is September 28, 2015. ProxyDemocracy.org had collected the votes of two funds when I checked and voted. I also picked up the votes of CalSTRS in my table below, since ProxyDemocracy doesn’t seem to be scraping their votes. I voted with the Board’s recommendations 38% of the time. View Proxy StatementContinue Reading →

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Governance, Disclosure and Share Price

Correlation

Correlation from XKCD.com

Good corporate governance means quicker, more frequent disclosures to the stock market. Or does it? The evidence varies by country, and in our research we wanted to check the relationship.

We used cross-country data from 23 OECD countries, firms with financial years ending between 1 January 2003 and 31 December 2008. We looked at company announcement information from more than 2,000 different firms, and share prices relating to 5,800 different firms. Continue Reading →

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Investors Seek Disclosure of Corporate Lobbying Expenses

Citizens United and Pay 2 PlayResolutions Filed at 53 Companies

Disclosure of corporate lobbying expenses remain top shareholder proposal topics for 2015, as more than 60 investors have filed proposals with more than 50 companies asking for reports that include federal and state lobbying payments, political contributions and/or payments to trade associations used for lobbying and payments to any tax-exempt organization that writes and endorses model legislation.

In 2014, resolutions relating to corporate political and lobbying expenses of a company were among the most common shareholder proposal put forth during the proxy season for the fourth consecutive year, and it is expected that these will be among the most popular shareholder proposal topics for 2015 proxy season. The bulk of political spending resolutions fall under two categories, either requesting disclosure of lobbying expenditures or seeking disclosure of political contributions. Continue Reading →

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OECD’s Draft Updated Principles Support Proxy Access

OECDThe OECD is inviting public comment on its draft updated Principles of Corporate Governance – last updated in 2004. These principles (first published in 1999) have long been among the most influential sources of corporate governance guidelines for regulators, stock exchanges, investors and companies world-wide, and continue to be referenced as a benchmark for good governance practices.

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CII Issues “Best-in-Class” Board Evaluation Disclosure

Board EvaluationThis recently released CII report highlights two suggested alternative approaches to company disclosure of the board evaluation process. The suggestions are based on CII’s informal survey of its members for “best-in-class” disclosure from 2013 and 2014 proxy statements. CII acknowledges that most companies have a board self-evaluation process and disclose that fact in their proxy statements, but indicates that investors are seeking more robust disclosure.

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Take Action: SEC-IAC Report on Impartiality Stops Short

Seal of SECThe Investor as Owner Subcommittee of the SEC’s Investor Advisory Committee (SEC-IAC) established pursuant to Section 911 of the Dodd-Frank Act issued a report on Impartiality in the Disclosure of Preliminary Voting Results. The recommendations will be discussed at a meeting on October 9, 2014.

When:Thursday, October 9, 10:00 am – 4:00 pm
Who:Investor Advisory Committee
What:Investor Advisory Committee Quarterly Meeting
Where:Multipurpose Room, SEC Headquarters, 100 F Street, NE, Washington, DC
Contact:Frankie White, Office of the Investor Advocate, (202) 551 – 4310

The members of the subcommittee are listed here. After I discuss the SEC-IAC’s two recommendations briefly below, which I support, I then urge readers to write to the SEC-IAC requesting they address additional issues of impartiality. Continue Reading →

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Research Design: Advance Proxy Vote Disclosers

P&I Proxy Voters Cartoon re fiduciary dutyAs I mentioned in yesterday’s post, Council of Institutional Investors Fall 2014 Conference: Meeting Availability, I’m encouraging a research project looking into the impact that funds announcing their proxy votes in advance have or can have. I’ve joined with Pensions&Investments in arguing funds have a fiduciary duty to make such advance proxy vote disclosures when that could influence the outcome. Now I want to see if that condition ever applies. Under what circumstances is advance disclosure likely to influence the outcome of corporate elections? Continue Reading →

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SEBI's New Disclosure Guidelines for Mutual Funds

InGovernimagesGuest post from Shriram Subramanian, founder of InGovern Research Services with the objective of facilitating shareholder activism by institutional investors and thereby enhancing corporate governance in India. Proxy Advisory Services, Corporate Governance Research, Risk Monitoring, and Proxy Services. India’s SEBI, through a circular dated March 24th, 2014, released a new set of disclosure guidelines to be followed by mutual funds. These guidelines will be applicable from April 1st, 2014. Some of the important guidelines are: Continue Reading →
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Take Action: Comments on SEC Pay Ratio Rule Due 12/2/2013

The deadline for submitting comments on the SEC’s proposed pay ratio disclosure is coming up quickly on December 2, 2013. SEC general comment instructionsSubmit Comments on S7-07-13 Pay Ratio Disclosure. Get your comments in soon, before Thanksgiving. Another advantage to earlier submittal is that those who wait for the deadline are likely to borrow from previous submission. The earlier you submit, the more likely you are to influence others. For example, I am impressed by comments from the following: Continue Reading →

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Investors Call on Food Companies to Stay out of Washington State GMO Battle

gmoCompanies that gave $46 million to stop California GMO labeling risk negative brand reputation if they fund effort to stop I-522 initiative for transparent labeling of food. Companies that donated funds to oppose ballot initiatives to require the labeling of products containing genetically modified organisms (GMOs) are facing new pressure from shareholders to stay out of future elections.

Leading up to the vote on Washington State’s ballot initiative to require GMO labeling, As You Sow, the Green Century Equity Fund, the Environmental Working Group (EWG), and the U.S. Public Interest Research Group (U.S. PIRG) are filing resolutions asking the top corporate donors to the opposition of the California GMO labeling ballot initiative to refrain from using Continue Reading →

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Review Essay: Citizens DisUnited

Citizens DisUnited: Passive Investors, Drone CEOs, and the Corporate Capture of the American Dream both delights and informs as only Robert A.G. Monks can. No one else writes so well about topics like “How CEOs and the Business Roundtable Hijacked the World’s Greatest Wealth Machine” and those in the current volume because no one else has been as engaged in corporate governance as Monks with such depth from so many angles.

A serial entrepreneur, public official, director, prolific author and long-time agitator, his lifework has been delineating the underlying dynamics of corporate power and devising system that integrate wealth creation with the interests of society. Citizens DisUnited is a clear call to action. I hope my review advances that call by emphasizing the need for every investor, every citizen to get involved. Continue Reading →

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Nell Minow: The Unfinished Business of Corporate Governance

Nell Minow

Writing in the March/April edition of The Corporate Board, Nell Minow titles her latest bit of advice, The Unfinished Business of Corporate Governance. Here’s the lead in:

After a decade of frantic corporate governance reform, business leaders may believe that governance has reached the pinnacle of responsibility and effectiveness. Not so fast, says Nell Minow, one of America’s most respected governance observers. Corporate data disclosure can still be manipulated, boards can still be opaque or unaccountable to investors, and work is still needed on corporate pay setting and transparency. Continue Reading →

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Agency Capitalism: Corrective Measures (Part 2)

This is Part 2 of a post which started out reviewing the important thesis outlined in The Agency Costs of Agency Capitalism: Activist Investors and the Revaluation of Governance Rights by Ronald J. Gilson and Jeffrey N. Gordon (January 1, 2013). See Agency Capitalism: Corrective Measures Part 1 and Part 3. Current law encourages mindless indexing of portfolios and voting like lemmings to fulfill fiduciary duties. While Gilson and Gordon stressed the need for activist hedge funds, below I explore some additional options. Continue Reading →

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Regulatory Weakening of Disclosure Opposed

I was delighted to see a post from the new contributor to theCorporateCounsel.net, Suzanne Rothwell, that actually took a strong stand against a House measure, which would boost the number of shareholders that trigger registration to 1000 shareholders (up from 500) and would “exclude employees and accredited investors from the calculation. This is a surprising initiative that would dismantle another post-1929 Market Crash reform that has worked well for many years to protect investors.”

Much more at The Need for Continuing Disclosure by Private Companies – The Mentor Blog, 6/15/2011.

According to a recent post by Broc Romanek, Ms. Rothwell recently retired from Skadden Arps after a decade of service in DC. “Previously, she served for 20 years in increasingly responsible positions with FINRA, including Associate Director and Chief Counsel of the Corporate Financing Department. At Nasdaq, she served as Special Counsel on the PORTAL Market and the development of trade reporting for debt securities.”

Great to see some real strong advocacy on The Mentor Blog. I look forward to more.

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Comply or Explain: Good for Institutional Shareowners Too

South Africa’s Business Reports (Draft code requires institutions to disclose voting, 9/2/10) says “a draft copy of the institutional shareholder code for responsible investing was released for discussion yesterday. The code, which requires public disclosure of voting records and policies, is set to have a significant impact on the way in which the country’s R1.5 trillion investment fund industry is managed. The only other country that has an institutional shareholder code is the UK.”

Their current code, King 3 is based on an “apply or explain” approach, which has been criticized as “pointless in an environment in which there is limited shareholder activism.”  The new code aims to generate shareholder activism based on more disclosure to and involvement from the ultimate beneficiaries.

Government Employees Pension Fund chief executive John Oliphant, who chairs the committee that drew up the code, said:

Without disclosure we’re wasting our time, the investment managers will merely say ‘yes, we’re having discussions with our clients about it’; disclosure is key if this code is to be effective.

Under the draft code, institutional investor would publicly disclose through the Internet and elsewhere, at least quarterly, how they have applied the code.

Good to see a code applicable to institutional investors seeking to involve the ultimate beneficiaries but not something as onerous as proposed by Lynn Stout in Fiduciary Duties for Activist Shareholders (with Iman Anabtawi), 60 Stanford Law Review 1255 (2008).

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CorpGov Bites

“In many ways, 2010 is the Foundation Proxy Season. By next year, the world will be changed. It is likely that both say-on-pay and proxy-access measures will be mandated. Directors will undoubtedly face greater scrutiny and more challenges than ever before. As a result of these impending challenges, boards must use the 2010 season to lay a strong foundation that prepares them for the future. That means building relationships with investors and strengthening management teams and boardroom rosters.” (This Proxy Season: Bowling for Ballots, Directorship, 2/11/10) Like always, Patrick McGurn provides the best insights into this year’s proxy season.

For excellent analysis of Citizens United, see Jay Brown’s theRacetotheBottom.org. Rallying place for action seems to be Shareowners.org.

For companies trying to figure out how to address the new disclosure requirements related to board qualifications, leadership structure, risk oversight, etc., Broc Romanek has you covered, offering up samples at TheCorporateCounsel.net Blog. (Samples: Companies Complying with the SEC’s New Rules, 2/11/10)

Ceres, in collaboration with Bloomberg and UBS, launched a new benchmarking study today called Murky Waters: Corporate Reporting on Water Risk.” The report (available here) ranks 100 publicly-traded companies in 8 water-intensive sectors on their water risk disclosure: beverage, chemicals, electric power, food, homebuilding, mining, oil & gas, and semiconductors.

Senate Bill 1007, by Democratic Sen. Loni Hancock of Berkeley, would require candidates for board seats with the California Public Employees’ Retirement System and the California State Teachers’ Retirement System to file ongoing campaign contribution and spending reports during and after an election. (Bill would boost CalPERS, CalSTRS election transparency, From The Capitol, 2/10/10)

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Vote Disclosure Coming at Pension Funds

At a hearing on compensation in the financial services industry, House Financial Services Committee Chairman Barney Frank said, “If you are the owner of shares … you have a privacy right, but if you own shares on behalf of a fiduciary you will need to disclose how you vote.” In late 2003, after years of pushing from people like Bob Monks and Nell Minow, approved rules requiring mutual-fund managers to disclose how they voted their proxies once a year every August.

A MarketWatch article (Frank: We’re going to have big investors disclose votes, 1/22/10) quotes Beth Young of the Corporate Library, “”By requiring public disclosure of votes, investment managers will think more about whether they have the information and staff to act as a fiduciary for the people they are voting on behalf.” Public disclosure increases feedback between corporations and investment managers as both consider votes more carefully.

The Employee Retirement Income Security Act (ERISA), has long required pension-fund administrators to disclose to pension-fund investors how they are voting on their behalf. However, that information does not need to be disclosed publicly. Additionally, to my knowledge, no fund administrator has ever been disciplined for failing to vote in the interests of plan beneficiaries. See my 1995 correspondence with the Pension and Welfare Benefits Administration and commentary under Fiduciary Responsibilities for Proxy Voting.

The MarketWatch article goes on to quote Charles Elson, director of the John L. Weinberg Center for Corporate Governance at the University of Delaware, on the positive impace on mutual fund voting. “The public-disclosure requirement has had a positive impact on how they operated and voted their slates. The information about mutual-fund votes does push the funds to be more active than they were.”

Apparently, no bill is in the drafting stage but such a provision may be included in future legislation later this year. This would be another very positive step that would help shareowners, in this case pension members, hold fund managers and ultimately corporate managers accountable. You can’t hold your pension fund trustees accountable if you don’t know how they vote. Examination can lead to change.

We saw that to be the case earlier this week at State Street Global Advisors (SSgA) after pressure from Walden Asset Management and United for a Fair Economy. Prior to their scrutiny, SSgA voted automatically Against ALL shareholder resolutions on environmental and social issues, whether the issue affected shareholder value or not. SSgA will now abstain if the resolution’s economic impact case is not clear, but will vote FOR resolutions where a strong case regarding how this affects shareholder value is made. (Major Shift in Proxy Voting Policy at State Street, CorpGov.net, 1/20/10)

We can expect similar shifts at pension funds, once Frank’s future measure is enacted. Of course, several public pension funds already not only disclose their votes once a year, but also do so in advance. You can see how leaders like the AFSCME Employees Pension Plan, CalPERS, CalSTRS, and Florida SBA are voting by going to ProxyDemocracy.org. I find that information very valuable when I’m voting my own shares as a retail investor. As a member of CalPERS, I also monitor how they are voting to ensure it is in the best interest of plan beneficiaries, like myself. When it isn’t, you can be sure CalPERS hears from me. Fortunately, those disagreements are infrequent.

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CorpGov Bites

TheCorporateCouncil.net posted a transcript of a recent Webcast on the SEC’s new Proxy Disclosure requirement. Like always, they do an excellent job of sorting out issues for those getting into the weeds.

RMG reports “The wave of new federal securities lawsuits related to the global credit crisis has finally subsided, down 7-24% depending on whose data you use. The largest category of 2009 cases were those that arose from the credit crisis. (Investors File Fewer Lawsuits in 2009, 1/6/10)

theRacetotheBottom.org has covered a raft of issues lately that are worth a read. These include: Executive Compensation at Goldman Sachs, Executive Compensation, Delaware’s Top Five Worst Shareholder Decisions of 2009 and the need for reinstating Glass-Steagall.

Bowing to pressure from shareholders of On2 Technologies, 11.5% of whom voted they share through MoxyVote.com, Google raised its offer  to  $132 million, up from $106.5 million. (Shazam! Google raises its offer price for On2, 2/7/10)

Study finds Private Investments in Public Equity (PIPEs) announcement returns decrease almost linearly across the first six PIPE transactions, going from positive to negative. Firms that issue multiple PIPEs have high cash levels, and a majority make acquisitions. Successive PIPE transactions delay accessing of public markets while keeping institutional ownership low. Hence, they are greeted skeptically by the market as maintaining managerial entrenchment. (Are Private Placement Announcement Returns Really Positive? On the Information Content of Repeated PIPE Offerings, Ioannis V. Floros and Travis Sapp, SSRN, 1/7/2010)

Small ESOPs, those controlling less than 5% of outstanding shares, benefit both workers and shareholders, implying positive productivity gains. However, the effects of large ESOPs on worker compensation and shareholder value are more or less neutral, suggesting little productivity gains. These differential effects appear to be due to two non-value-creating motives specific to large ESOPS: (1) Management-worker alliances to thwart hostile takeover threats and (2) To substitute wages with ESOP shares by cash constrained firms. Worker compensation increases when firms under takeover threats adopt large ESOPs, but only if the firm operates in a non-competitive industry. (“Employee Capitalism or Corporate Socialism? Broad-Based Employee Stock Ownership”, Kim and Ouimet, SSRN, 12/1/09)


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