November 30, 2022

Volume XII, Number 334

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November 28, 2022

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Shareholder Activism: An ESG Tool or A Founder's Curse?

INTRODUCTION

We live in a new world. Gone are the days when the investors in a company are silent spectators. They are no longer looking to exit at the first sign of distress. Today’s investors have evolved; they are eager to play a more proactive role and do not shy away from calling out the blunders of the management. If required, they are also willing to ensure that corrective measures are taken in a timely manner to steer the company from any adverse consequences. The writing on the wall is clear i.e. the management and board cannot run the company on their whims and fancies and will have to answer for their actions. 

However, while shareholder activism is often an effective means of disciplining the management, it has the capability to be misused and can become a nuisance to founders and the management. It may also act as a weapon in the hands of a motivated investor trying to protect short-term interests. In this article, we discuss the good, the bad and the ugly of shareholder activism and its impact on companies from an environmental, social and governance (“ESG”) perspective. 

Rise of Shareholder Activism

Shareholder activism has grown multifold in the last few years due to multiple factors such as the increase of institutional investors, increase of informed investors, tightening of the corporate governance regime, and better access to information. In fact, investors’ growing preoccupation with ESG standards across the world is also giving rise to significant shareholder activism. A recent and prominent example of this includes the activism demonstrated by Engine No. 1, a small hedge-fund investor of Exxon, which was successful in mobilizing the support of other institutional investors and installing three directors on the board of Exxon, with the aim of pushing Exxon into reducing its carbon footprint.1

Types of Shareholder Activism

Shareholders are increasingly engaging with the company management to influence their behavior, push for policy changes, and influence overall conduct. There have, typically, been two streams of shareholder activism. Firstly, financial activism which focuses on maximizing the shareholder value and governance issues. Secondly, social activism which focuses on the influence of the company on larger outcomes, such as company’s overall environmental impact, social standing etc. Many times, the activist investors raise both financial as well as social issues. The type of investor often determines the nature of the issues that the investor is likely to raise. For instance, venture capital funds, private equity funds, and mutual funds may be more interested in raising issues from a financial and governance standpoint whereas investors who are environmentally or socially more conscious may be more interested in raising such issues from a social standpoint. Having said that, when an issue is raised, each investor will attempt to mobilize support from others in aid of their view. 

OBJECTIVES OF SHAREHOLDER ACTIVISM

Activist investors can raise multiple and varied sets of demands. For example, in public companies that are valued at less than the sum of their parts (i.e. the amount they could generate if they were liquidated), the investors can push the management to:

In other cases, the activists typically make demands such as requiring the management:

From a governance standpoint, the activist investors may require the company:

Each of these decisions can and usually does end up becoming contentious. To that end, the manner in which such issues are raised and solutions are discussed require that constant communication through dialogue remains constant. Should dialogue not take place, the matter will probably end up before the courts, which will prejudice all stakeholders. 

Impact of Shareholder Activism

Most cases of activism are well-intentioned attempts at addressing any issues that may be found in the company. Shareholders’ role as “watchdogs” therefore, can provide effective oversight of the management and board. It also ensures effective acknowledgment and implementation of improved ESG standards in the company, with more transparency and accountability. 

However, shareholder activism has also gained disrepute as it can sometimes cause more interference than necessary in the management of the companies. Many times, increased involvement of shareholders, howsoever well-intentioned, has resulted in greater disputes between the management of the companies with the activist shareholders. One need not look further than the BharatPecontroversy,5 or the more recent Trell6 and Zillingo7 controversies, to understand these clashes between founders and investors. These controversies are unsurprising in start-ups wherein investors, taking on immense risks at the early stages of a company, consider themselves justified in taking a more active role in the management of such companies, especially as the companies grow exponentially. We see this happening not only in Indian companies such as Flipkart8 and Housing.com,9 but also globally through the examples of Apple,10 WeWork,11 Uber12 and Twitter,13amongst others. 

Tools Under Indian Legal Regime

All of these instances lead to an important question of the extent to which shareholder activism should interfere with the daily management of a company. Indian law provides several tools for activist shareholders to hold a company accountable. These tools enable the shareholders to demand information about the company and/or ensure free and fair participation in the general meetings. For instance, the Companies Act, 2013 (Companies Act) provides shareholders with a right to inspect the memorandum, articles, special resolutions, and agreements relating to the appointment, renewal, or variation of terms of the appointment of managing directors.14 Shareholders can also seek inspection of books containing minutes of proceedings of general meetings or resolutions passed by postal ballots,15 registers of loans and investments,16 register of charges,17 amongst others. The Companies Act also ensures that the shareholders have a right to receive the notice of general meetings and to attend and cast their votes freely. In fact, shareholders holding a minimum of 10% of paid-up share capital are entitled to direct the board to call for a shareholders' meeting and push for any change they wish to bring about in the management of the company.18 In addition, shareholders can also file an application in a tribunal against the company if it believes that the company is operating in a manner that is against the public interest or is oppressive and prejudicial to the shareholders.19 In some instances, shareholders can also withhold their consent for any related party transaction being undertaken by a company.20 It is important that activists understand and exercise their rights in accordance with the law. 

Understanding the Motive

While investor activism is a double-edged sword, it becomes important to understand whether the sword is being used as a weapon of attack, or defense. To that end, understanding the motive and the proposed solution is key. 

In the case of Maruti, India’s largest carmaker and a subsidiary of the Japanese Suzuki corporation, a situation unfolded where the parent, Suzuki Motor Corporation acting through a separate subsidiary, proposed leasing a plot of land from its own subsidiary, Maruti, and setting up a plant which would manufacture Maruti cars and engine components and sell them to Maruti. It did not take long for activist investors to question the decision to house the manufacturing in a separate subsidiary and on land which was already owned by Maruti. It was argued21 by IIAS that Suzuki Motor Corporation was parking a profitable business in a 100% subsidiary. Extremely vocal shareholder activism led to this proposal being scrapped and Maruti setting up the Gujarat plant directly thus ensuring that the benefit was passed on to all its stakeholders. In its true sense, the company was able to derive full value of its own business and future growth. 

Importance of Effective Communication

Communication is key. The reasons for a proposed decision form the bedrock on which investor opinion is based. We live in a world of extreme transparency where each aspect of a decision can and usually is dissected by each and every stakeholder. The opaqueness with which entities operated in the yesteryears are a thing of the past. To that end, a company’s decision-making process, if well communicated and articulated, will reduce the chances of activism in its ranks. Where the moral compass is unquestionable and the communication is well-thought-out and reasonable, it will usually ensure that the stakeholders of a company will have faith in the proposals that come before them. 

In addition, the management should also keep an eye on certain red flags that may invite shareholder activism. Some common red flags that may catch the eye of activist shareholders are consistently poor financial performance, poor financial planning or investment decisions, lack of adherence to ESG standards, and arbitrariness in executive compensation. 

Conclusion

With the increase of institutional investment in Indian companies, more and more incidents of activism are being seen whereby activists are attempting to control or influence the day-to-day activities of the company.22 This is only going to increase. Shareholders are slowly but surely taking on an active role to the extent that they begin to make their voice heard within the decision-making of a company. While overreach by shareholders may arguably have an adverse effect, it does not mean that the management of a company should be free to run the company without any monitoring. 

As the Companies Act also requires, directors of a company should act in the best interests of the company, its employees, shareholders, community and for the protection of the environment.23Shareholder activism, when it rightfully seeks to push the management of the company into achieving such obligations, continues to remain desirable and will be required in the larger scheme of implementing and monitoring ESG goals.

Ritika Bansal Contributed greatly to this report.


1 https://www.nytimes.com/2021/06/23/magazine/exxon-mobil-engine-no-1-board.html

2 https://hbr.org/2016/03/the-case-for-activist-investors

3 Supra at 2.

4 https://hbr.org/2021/04/shareholders-are-pressing-for-climate-risk-disclosures-thats-good-for-everyone?

utm_medium=email&utm_source=newsletter_daily&utm_campaign=dailyalert_actsubs&

utm_content=signinnudge&deliveryName=DM129167

5 https://www.nishithdesai.com/fileadmin/user_upload/Html/Hotline/YGM_M_Feb0522.htm

6 https://economictimes.indiatimes.com/tech/newsletters/morning-dispatch/trell-is-the-new-bharatpe-

boat-plans-acquisition-spree/articleshow/90277139.cms?from=mdr

7 https://www.financialexpress.com/industry/sme/cafe-sme/zilingo-ceo-ankiti-bose-exploring-buyback-

option-ahead-of-board-meeting/2503439/

8 https://www.business-standard.com/article/companies/revealed-how-walmart-decided-to-oust-

flipkart-co-founder-binny-bansal-118111500702_1.html

9 https://www.forbesindia.com/article/special/housing.com-shows-the-door-to-rahul-yadav/40597/1

10 https://www.businessinsider.in/tech/this-is-why-steve-jobs-got-fired-from-apple-and-how-he-came-

back-to-save-the-company/articleshow/59853160.cms

11 https://www.nytimes.com/2019/09/24/business/dealbook/wework-ceo-adam-neumann.html

12 https://edition.cnn.com/2019/05/08/tech/uber-first-investors/index.html

13 https://www.cnbc.com/2021/11/29/twitter-ceo-jack-dorsey-is-expected-to-step-down-sources-say.html

14 See Section 17 and 117 of the Companies Act, 2013.

15 See Section 119 of the Companies Act, 2013.

16 See Section 186 (9) and 186(10) of the Companies Act, 2013. 

17 See Section 81 of the Companies Act, 2013.

18 Section 100, The Companies Act, 2013. 

19 Section 241, The Companies Act, 2013. 

20 Section 188, The Companies Act, 2013. 

21 https://www.financialexpress.com/archive/maruti-investors-see-red-over-suzuki-plan-to-set-up-

gujarat-plant/1221432/

22 https://www.thehindubusinessline.com/business-laws/rising-shareholder-activism-in-india/

article64910251.ece

23 Section 166, The Companies Act, 2013.

Nishith Desai Associates 2022. All rights reserved.National Law Review, Volume XII, Number 161
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Mohammad Kamran Lawyer Nishith Desai Assoc. India-centric Global Law Firm
Member of the International Dispute Resolution and Investigations Practice

Mohammad Kamran is a Member of the International Dispute Resolution and Investigations Practice at the multi-skilled, research based international law firm, Nishith Desai Associates (www.nishithdesai.com) with offices in Mumbai, Silicon Valley, Bangalore, Munich, Singapore, New Delhi and New York. He is also an integral member of the Global Insolvency and Bankruptcy Practice at the firm. Kamran graduated from National University of Advanced Legal Studies, Kochi and holds an Honors degree in B. A. LL.B. (Hons.). He is registered...

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Sahil Kanuga Co-Head of International Dispute Resolution & Investigations Practice

Sahil Kanuga co-heads the International Dispute Resolution & Investigations Practice at research and strategy driven international law firm, Nishith Desai Associates.  

 

Known for his analytical and meticulous approach aimed to reach his clients' goal, Sahil has worked on an array of complex matters including Indian and international arbitrations. He aggressively tackles the challenges presented by each case - legal, financial, or otherwise and has advised on corporate and commercial laws, civil and constitutional...

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