How do you know if your company is likely to be a target for activists? And what is the best way to respond when approached by an activist?

Skadden M&A partner Ann Beth Stebbins discusses the activist’s playbook with Ted White of Legion Partners Asset Management, a veteran activist investor, and Elizabeth Gonzalez-Sussman, head of the firm’s Shareholder Engagement and Activism Practice.

Activists seek to identify companies where value can be increased. Some activists will focus on operational or governance improvements, while others will press for transactions that could release value, Ted and Elizabeth explain.

Ted and Elizabeth observe that shareholders are not always forthcoming with management, which may make it difficult of a board to understand shareholder concerns. Ted notes that, as an investor, he has observed cultural misalignment in some companies experiencing underperformance, and stresses that it may be important for board members to hear directly from shareholders.

Elizabeth says that, when meeting with activist investors, management and directors should listen to the issues that are raised. Ted says his firm will be trying to gauge if management and the board are aware of the concerns expressed in a meeting, and are willing to address, or at least consider, those. He also notes that directors should assume that the activist has talked to other shareholders about the company and the potential issues that the activist has identified.

Companies should be careful about responding defensively to activists, Ted and Elizabeth say. If the company reacts hostilely or dismissively, that may cause other shareholders to perceive that there is a problem. It could also prompt a more aggressive campaign by the activist to replace directors in the future, and cause proxy advisory firms to be more critical of the company.

If activists succeed in electing new directors, the existing board should attempt to work with them collaboratively, Elizabeth and Ted say, even though the contentious nature of a proxy fight may make cooperation challenging. Ted notes that board dissonance may encourage shareholders to seek to replace more directors at the next annual meeting.

Name: Ann Beth Stebbins

Title: Partner at Skadden

Connect: LinkedIn

Name: Elizabeth Gonzalez-Sussman

Title: Partner; Head of Skadden’s Shareholder Engagement and Activism Practice

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Name: Ted White

Title: Co-founder and a Managing Director of Legion Partners Asset Management

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Investors often believe that companies are too slow to refresh their boards. Directors and CEOs may also think that their companies do not have the right mix of directors, as strategies change and some directors’ skills become dated.

Yet annual board turnover remains low and fairly steady, Spencer Stuart partner Laurel McCarthy tells podcast host, Skadden M&A partner Ann Beth Stebbins. Together with Skadden partner, Elizabeth Gonzalez-Sussman, Laurel and Ann Beth discuss the ways boards should approach refreshment, and the risk that they could be targeted by activist investors if they do not replace directors regularly.

Many board policies do not encourage refreshment. The typical mandatory retirement age for S&P 500 directors, has been increasing, and is now at age 75. “We usually don’t see many stats that surprise us in our annual board index, but this one did,” Laurel says. At the same time, the number of boards with mandatory retirement ages has been dropping.

Meanwhile, board term limits, when present in a company’s bylaws, are usually generous — 15 or 20 years. Proxy advisory services do not have prescriptive policies on term limits, but they question the independence of directors who have served for more than nine years on a board.

As Laurel and Elizabeth explain, age and term limits can encourage turnover, but they should not be the sole mechanism. Boards need to continually analyze the skills required by the board in light of a company’s changing strategies, and develop pipelines of potential new directors to fill those needs.

Elizabeth points out that companies that have a number of long-tenured directors may be vulnerable to activist investor campaigns if the company underperforms. Demands that a company appoint new directors to improve performance often figure prominently in activist campaigns.

Some investors may favor adding younger board members, particularly where the customer base is young or if technology is central to the business, Elizabeth says.

In evaluating potential board members, Laurel and Elizabeth suggest prioritizing candidates who have recent experience, are good cultural fits and ask tough questions that management should be prepared to answer.

Ultimately, they advise boards to be proactive, as succession planning and maintaining a pipeline of potential directors is critical to a company’s future performance.

Name: Ann Beth Stebbins

Title: Partner at Skadden

Connect: LinkedIn

Name: Laurel McCarthy

Title: Consultant, Board and CEO Practice, Spencer Stuart

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Name: Elizabeth Gonzalez-Sussman

Title: Partner, Shareholder Engagement and Activism, Skadden

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What do investors think makes a board effective? Skadden M&A partner Ann Beth Stebbins kicks off the discussion with that question with her guests, Allie Rutherford and Adrienne Monley of PTJ Camberview, which advises companies on shareholder relations.

It's a board that evolves with the trends, says Allie. It's a board that discloses its composition in a way that conveys how the skill sets and the experiences of particular directors and directors in combination meet the business and strategy needs of the particular company.

Companies need to show investors that they have right directors and that those people are doing the right things as a team, following practices and engaging together in a way that supports value creation, says Adrienne. It is incumbent upon companies to be specific and help investors understand, perhaps through anecdotes, the human perspective about what's happening in the boardroom — how they run meetings and bring in outside voices, for example. Being generous with those descriptions, both in written disclosures and in engagement with investors, will help promote where investor support and understanding.

In terms of directors' skill sets, not everybody has to have every skill. It's how all of those come together, says Allie. And boards can supplement that by bringing in outside expertise.

Investors also want a board to be doing things that improve the efficacy and the functioning of the board as a team, says Adrienne. As a result, today more board self-assessments include things like independent interviews.

Because few investors have first-hand boardroom experience, it can be helpful to have direct discussions with your top investors about the board's functioning, says Adrienne.

Name: Ann Beth Stebbins

Title: Partner at Skadden

Connect: LinkedIn

Name: Allie Rutherford

Title: Partner, PJT Camberview

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Name: Adrienne Monley

Title: Managing Director, PJT Camberview

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In this episode of the Informed Board podcast, our host, Skadden M&A partner Ann Beth Stebbins is joined by guest, Rebecca Corbin from Corbin Advisors, to explore the critical role that board directors play in shareholder engagement. Corbin stresses that a proactive approach toward shareholder engagement can enhance a company’s value.

In their conversation, Ann Beth and Rebecca discuss how a board can best stay attuned to investor sentiment, the practical actions a company can take to raise the profile of its directors, and the role of the board in spreading the culture and message of the company.

Looking at topics that investors are focused on, the episode explains that corporate culture, if communicated effectively, can give a company a competitive edge with investors. Future-readiness is another key theme, highlighting the necessity for boards to have diversified skill sets that align with the company's strategic objectives.

This episode serves as an insightful guide to the world of proactive shareholder engagement, emphasizing the role directors can play as value-enhancing ambassadors of a company.

Name: Ann Beth Stebbins

Title: Partner at Skadden

Connect: LinkedIn

Name: Rebecca Corbin

Title: Founder & CEO at Corbin Advisors

Connect: LinkedIn

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The Informed Board is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

“There’s certainly an argument to be made, that the moment you name a new CEO, then you ought to be starting to think about who the next person is,” says Blair Jones.

In this episode of the Informed Board podcast, our host, Skadden M&A partner Ann Beth Stebbins, is joined by guests, Blair Jones, a managing director at Semler Brossy Consulting Group LLC, and Erica Schohn, partner and head of the Executive Compensation and Benefits Practice at Skadden, to explore best practices in CEO succession planning. They highlight the importance of preparedness, noting that a well-conceived succession program should serve as a contingency plan for unforeseen events, as well as for orderly retirement of a CEO.

The trio emphasize that succession planning should be an annual event, allowing for adjustments as business strategy evolves. They also discuss the necessity of having multiple candidates and keeping them incentivized, including those not selected for the CEO position. A key issue is the current CEO’s role in succession planning. Typically, the CEO will be involved, but ultimately it falls to the board to make the final decision.

The guests also highlight emerging trends in succession planning, including the use of external assessments, the role of executive chairs and the development of next-level candidates. They conclude that, while companies lean toward internal candidates during planned successions, external candidates are more likely to be considered in the case of unexpected transitions or shifts in business strategy.

Name: Ann Beth Stebbins

Title: Partner at Skadden

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Name: Erica Schohn

Title: Partner at Skadden

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Name: Blair Jones

Title: Managing Director at Semler Brossy Consulting Group, LLC

Connect: LinkedIn

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The Informed Board is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. This podcast is provided for educational and informational purposes

Skadden partners Ann Beth Stebbins, David Schwartz and Lara Flath discuss the implications for US companies of the Supreme Court’s decision in June striking down race-based affirmative action programs in higher education. David Schwartz is global head of Skadden’s labor and employment group, and Lara Flath is a Skadden litigation partner who represented the University of North Carolina (UNC) in the litigation relating to its consideration of race in the admissions process.

Name: Ann Beth Stebbins

Title: Partner at Skadden

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Name: David E. Schwartz

Title: Partner at Skadden

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Name: Lara A. Flath

Title: Partner at Skadden

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The Informed Board is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

Companies now face an additional regulatory hurdle when making acquisitions in the European Union. In addition to merger control and foreign direct investment (FDI) filings, they will be subject to the EU’s new Foreign Subsidies Regulation (FSR), Skadden partner Giorgio Motta explains. The law, which took effect in July, allows the European Commission to look into acquisitions of, and investments in, businesses in Europe by non-EU companies that have received some sort of financial support from a non-EU government.

Read the full summary of the conversation HERE.

Name: Ann Beth Stebbins

Title: Partner at Skadden

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Name: Giorgio Motta

Title: Partner at Skadden

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The Informed Board is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

In 2022, the U.S. restricted technology exports to China that might have military uses, and an executive order is expected soon limiting investments in certain Chinese tech companies. Skadden M&A partner Ann Beth Stebbins leads a discussion about the reasons for the rules and their impact on companies doing business in China. Joining her are Jessie Liu, a partner in Skadden’s White Collar Defense and Investigations Group, and partner Brian Egan of the firm’s National Security, CFIUS and International Trade Groups.

Read the full summary of the conversation HERE.

Name: Ann Beth Stebbins

Title: Partner at Skadden

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Name: Jessie Liu

Title: Partner at Skadden

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Name: Brian Egan

Title: Partner at Skadden

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The Informed Board is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.