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The general in his lair

28 March 2014 By Reynolds Holding

Corporate boards’ defender-in-chief keeps fighting the last war. Lawyer Marty Lipton proved again at the New Orleans M&A confab that he can give as good as he gets. But prior panelists’ emphasis on improving governance and shareholder value made his swipes at activists seem dated. The legal lion’s roars are sounding more stubborn than persuasive.

Aggressive investors shaking up dozy boards was the talk of this year’s conference. Lawyers, bankers and other advisers stressed listening rather than resistance as the key to assuaging shareholder concerns. They were resigned, if not welcoming, to activists as a goad to underperforming corporations and counseled self-imposed governance and financial reforms as the best response.

Lipton would have none of it. After a playfully snarky introduction from Delaware Supreme Court Justice Leo Strine, the Wachtell, Lipton, Rosen & Katz partner made his case. Boards must “transcend the immediate interests of shareholders” and also consider the long-term needs of employees, customers, suppliers and communities. And activists, he said, aren’t much help – despite indications to the contrary.

Lipton and Harvard shareholder-rights advocate Lucian Bebchuk have long butted heads over uppity shareholders’ motives, prompting the corporate attorney to demand evidence that activists invest for the long term. Bebchuk delivered it last August, but on Friday Lipton belittled the extensive study, saying it was based on statistics and “averages” that can’t tell individual company stories.

After saying he relies on some statistics, too – “100 percent of my clients agree with me,” he quipped – he conceded that probably no study would ever convince him.

The power of his “anecdotal evidence” and experience shouldn’t be dismissed. His prescient championing of employees, customers and other corporate constituents has gained broad academic, business and legal support. He doesn’t dislike all activists, either, naming Trian Fund’s Nelson Peltz as deserving respect for a long-term perspective while slamming Carl Icahn, Elliott Management’s Paul Singer and Pershing Square’s Bill Ackman.

Knee-jerk resistance in the face of evidence, though, undermines constructive debates about the best interests of companies and their owners. Lipton admits that he doesn’t have solutions, saying managers should just realize that a long-term view best serves corporations. The problem is that activists are, in fact, offering solutions, or at least ideas that can work. Lipton’s spirited but familiar responses leave him looking out of step.


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