Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System

Yale Law Journal, Vol. 126, Pg. 1870, 2017

U of Penn, Inst for Law & Econ Research Paper No. 17-5

Harvard Law School, John M. Olin Institute for Law, Economics, and Business Discussion Paper no. 899

103 Pages Posted: 22 Feb 2017 Last revised: 20 Apr 2017

Leo E. Strine Jr.

Government of the State of Delaware - Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School

Date Written: 2017

Abstract

This paper examines the effects of hedge fund activism and so-called wolf pack activity on the ordinary human beings — the human investors — who fund our capital markets but who, as indirect of owners of corporate equity, have only limited direct power to ensure that the capital they contribute is deployed to serve their welfare and in turn the broader social good.

Most human investors in fact depend much more on their labor than on their equity for their wealth and therefore care deeply about whether our corporate governance system creates incentives for corporations to create and sustain jobs for them. And because human investors are, for the most part, saving for college and retirement, they do not gain from stock price bubbles or unsustainable risk taking. They only gain if the companies in which their capital is invested create durable value through the sale of useful products and services.

But these human investors do not typically control the capital that is deployed on their behalf through investments in public companies. Instead, intermediaries such as actively traded mutual funds with much shorter-term perspectives and holding periods control the voting and buy and sell decisions. These are the intermediaries who referee the interplay between activist hedge funds and corporate managers, an interplay that involves a clash of various agents, each class of which has a shorter-term perspective than the human investors whose interests are ultimately in the balance.

Because of this, ordinary Americans are exposed to a corporate republic increasingly built on the law of unintended consequences, where they depend on a debate among short-term interests to provide the optimal long-term growth they need. This paper humanizes our corporate governance lens and emphasizes the living, breathing investors who ultimately fuel our capital markets, the ways in which they are allowed to participate in the system, and the effect these realities have on what corporate governance system would be best for them. After describing human investors’ attributes in detail — their dependence on wages and locked-in, long-term investment needs — this paper examines what people mean when they refer to “activist hedge funds” or “wolfpacks” and considers what risks these phenomena may pose to human investors. Finally, this paper proposes a series of reforms aimed not at clipping the wings of activist hedge funds, but at reorienting our corporate governance republic to truly serve the needs of those whose money it puts to work — human investors.

Keywords: Business corporation law, securities regulation, activist hedge funds, wolf pack activism, corporate governance, social responsibility, money managers, disclosure, transparency, private equity, inequality, longtermism, long-termism, shorttermism, short-termism, retirement, savings

JEL Classification: G18, G23, G32, G34, G35, K22, P12, P16

Suggested Citation

Strine, Leo E., Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System (2017). Yale Law Journal, Vol. 126, Pg. 1870, 2017; U of Penn, Inst for Law & Econ Research Paper No. 17-5; Harvard Law School, John M. Olin Institute for Law, Economics, and Business Discussion Paper no. 899. Available at SSRN: https://ssrn.com/abstract=2921901

Leo E. Strine Jr. (Contact Author)

Government of the State of Delaware - Supreme Court of Delaware ( email )

820 N. French Street
P.O. Box 1997
Wilmington, DE 19801
United States

Harvard Law School ( email )

1563 Massachusetts Ave
Cambridge, MA 02138
United States

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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