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Jonathan Litt Considers Pushing for Mack-Cali Sale
" Bloomberg (08/14/18) Deveau, Scott"

Sources say Land & Buildings Investment Management's Jonathan Litt has increased his position in Mack-Cali Realty Corp. (CLI) and likely will push for changes at the real estate investment trust, including a possible sale of all or parts of the company. The firm disclosed in an Aug. 13 regulatory filing that it had acquired 1.26 million additional shares in Mack-Cali, quadrupling its stake to about 1.85%. Sources say it is uncertain whether Litt and Mack-Cali's management have met to discuss the changes he might seek at the company. Litt sat on Mack-Cali's board for more than two years, resigning in August 2016 after the company's shares rose more than 32%.

Icahn Backs Down on Cigna-Express Scripts Deal
" Wall Street Journal (08/13/18) Lombardo, Cara"

Carl Icahn no longer plans to solicit proxies to vote against the $52 billion Cigna-Express Scripts deal, after two proxy-advisory firms recommended shareholders support the transaction.  His decision marks a dramatic reversal of his position a week ago when he urged the health insurer's shareholders to vote against it.  Near the end of this year's first quarter, Cigna (CI) agreed to acquire Express Scripts (ESRX), one of the largest U.S. pharmacy benefits managers.  The health insurer, which now needs shareholder approval to close the deal, is holding a special meeting on Aug. 24 so investors can vote on it.  Icahn holds 0.56% of Cigna's shares.  One of the risks he pointed to is Amazon (AMZN), which recently purchased online prescription drug company PillPack.  Icahn believes Amazon could one day put Express Scripts out of business.  Another prominent hedge fund, Glenview Capital Management LLC, said last week it backed the deal.  The fund has a $1.3 billion stake split between the two companies.  Meanwhile, Institutional Shareholder Services and Glass Lewis' opinions hold significant sway with shareholders.  Such proxy advisory firms rarely recommend their clientele, which include big institutional investors, vote against proposed mergers.  In turn, major institutional shareholders often vote in line with the proxy-advisory firms' opinions.

Video: Icahn Drops Fight Against Cigna-Express Scripts Deal
" CNBC (08/14/18)"

In this video, CNBC commentators discuss Carl Icahn's move to drop his opposition to the proposed deal between Cigna (CI) and Express Scripts (ESRX).  He told CNBC "the crossover was too big...given what advisory firms said we realized there was no way we can win."

Elliott Unleashes a Record Nielsen Rally by Urging Sale
" Bloomberg (08/13/18) Deveau, Scott; Mutua, David Caleb"

Paul Singer's Elliott Management Corp. acquired an 8.4% stake in Nielsen Holdings Plc (NLSN) and called for a sale of the consumer-data giant, sparking the biggest stock rally since it first went public. Elliott said it will "encourage the issuer to undertake a full strategic review of, and initiate a process to explore, the sale." Elliott built up its position on July 26, the day Nielsen reported bad news that plunged the company into upheaval and erased $2.7 billion of its market value. The company reduced its profit forecasts for the year and said its chief executive officer will retire. It also said it was considering options for its Buy segment, which tracks consumer purchases. "Elliott Management knows their way around the media business," said Douglas Arthur, a managing director at Huber Research Partners LLC. "What's important now is for them to figure out who'll be the buyer and what's going to happen to [its $8.5 billion of] debt." Nielsen shares rose 17% today to $25.67, the biggest intraday gain since the company's 2011 initial public offering. The stock had dropped 40% this year through Friday.

Elliott Management to Push Nielsen Holdings to Sell
" Wall Street Journal (08/12/18) Lombardo, Cara"

Elliott Management Corp. has acquired an 8.4% stake in Nielsen Holdings PLC (NLSN), according to a filing Monday, and plans to push the TV-ratings company to sell itself. Numerous private-equity firms have expressed interest in Nielsen and bidders could include Elliott, according to sources. The company has been struggling in a rapidly changing retail environment, and it recently announced CEO Mitch Barns would step down at the end of this year. It has begun a search for his successor.  Elliott believes the company's “buy” segment has failed to keep up with competitors such as IRI, which has invested in data-intensive offerings, while Nielsen has continued to depend on its employees to provide analysis to clients, sources said. The fund wants Nielsen to launch a strategic review of the entire business rather than just the “buy” segment. Meanwhile, a Nielsen spokeswoman said the firm's board of directors continues to evaluate how to best position the business and is open to the views of its owners, including Elliott.  

Icahn Dealt Another Blow as Glass Lewis Supports Cigna Deal
" Bloomberg (08/11/18) Deveau, Scott"

Glass Lewis & Co. has advised Cigna Corp. (CI) shareholders to vote for the company’s $54 billion deal for Express Scripts Holding Co. (ESRX) at an Aug. 24 shareholder meeting. The proxy advisor's recommendation—which echoes that of Institutional Shareholder Services Inc.—marks a setback for Carl Icahn's efforts to block the deal. “We find the proposed merger both strategically and financially compelling, structured in a reasonable manner from a valuation standpoint for Cigna shareholders,” Glass Lewis said in its report Friday. Icahn, who owns a 0.56% stake in Cigna, has argued the insurer is “dramatically overpaying” for Express Scripts. While he has admitted he faces an uphill battle to upend the deal, the billionaire investor has urged Cigna investors to vote against it, based in part on the threat from Inc. (AMZN) to Express Scripts's future. Icahn said he believed Cigna should pursue a multiyear partnership rather than a takeover, and use its cash to buy back shares. He said he believes Cigna could be worth $250 a share on a standalone basis and that Express Scripts, which he holds a short position in, would be worth less than $60 a share. Cigna closed Friday at $183.28 while shares in Express Scripts ended the trading day at $83.64. Glass Lewis said it believed the merger was set at a reasonable price, and would create a more diverse and integrated business model in the changing healthcare industry.

Thyssenkrupp Needs New Strategy, Targets Not Enough: Investor
" Reuters (08/11/18) Käckenhoff, Tom"

A Thyssenkrupp shareholder is unsatisfied with mid-term targets announced last week and is calling for a strategy overhaul led by a new CEO. Union Investment owns just a 0.2% stake in the German conglomerate, but has been one of its most vocal shareholders and repeatedly pressed management to seek a deeper restructuring. “Thyssenkrupp needs a strategy shift. This is easier to achieve when someone new comes in from the outside,” said fund manager Ingo Speich said. Thyssenkrupp has been in crisis after both its CEO and chairman stepped down in July following shareholder pressure to boost the share price, which has dropped one-third since 2011. A recent profit warning has escalated matters for interim CEO Guido Kerkhoff, who served as CFO but has taken the helm until a long-term successor is found. “(Kerkhoff) stands for the old strategy. It would send a stronger signal to capital markets if the new CEO came from the outside,” Speich said. “A good combination could be a new external CEO who will be supported by Kerkhoff.” Speich, along with bigger shareholders Cevian and Elliott, does not support an outright breakup of the company but said there should be a more active management of its portfolio. “This includes replacing some areas or strengthening them via acquisitions. This could also result in the addition of jobs,” he said.


Developments in Governance and Disclosure: Three-Year Shareholder Proposal Trends
" Lexology (08/13/18) Kimball, Robert L.; Fortt, Sarah E."

ISS data reveals that the percentage of shareholder proposals pertaining to more traditional governance matters was nearly equal to the percentage of shareholder proposals pertaining to environmental or social matters over the last two years, but there was a significant decrease in governance proposals and a corresponding increase in environmental and shareholder proposals between 2016 and 2017 meetings. For 2018, about 40% of shareholder proposals reported to ISS related to governance matters, down from 42% in 2017, while 41% pertained to social or environmental matters, up from 40%. In 2016 meetings, about 50% of shareholder proposals related to governance matters, and 30% related to environmental or social matters. Shareholder proposals receiving majority support during the last three years include 10 proposals requesting a report on governance proposals implemented to monitor and manage financial and reputational risks related to the U.S. opioid crisis, seven proposals related to drug prices, six proposals requesting a report on "truthful" news operations, three proposals related to cybersecurity and cybersecurity risk matters, and two proposals requesting reports on gun violence or safety.

Canada: Exploring the Link between Gender, Governance, and Shareholder Activism
" Mondaq (08/13/18) Shung, Kaitlin"

Companies with more women on their boards attract fewer activist investors, according to a study by global consultancy firm Alvarez and Marsal (A&M). In addition, companies not engaged by activists had on average 13.4% more women on their boards. The study shows that the push for diverse governance only seems to be getting stronger globally. In Canada, all CBCA companies with publicly traded securities must now disclose how many women and visible minorities are on their boards. In addition, proxy advisors Institutional Shareholders Services and Glass Lewis have pledged to withhold vote recommendations if a company does not have female board members or if it has not adopted a formal written gender diversity policy. The study highlights an important correlation between women and shareholder activism, and the relationship appears to lie in company performance. Harlan Zimmerman, a senior partner at Cevian Capital, explained that "boards with a greater percentage of women are not only likely to be more diverse in their thinking, but, by definition, they are less likely to function like an old boys' club" and that "both of these should contribute to, on average, better performance." Furthermore, diversity of experience and thought also leads to better risk management and more innovation. With all of these benefits becoming increasingly apparent, if a board has no women on it, it is easier for activists to depict a company as out of touch and use that as an opportunity to advance their platforms.

Activists Are Rebranding as a ‘Force for Good’
" IR Magazine (08/14/18) Richardson, Ben"

Activist investors have started presenting themselves as “change agents” that help companies unlock value and drive growth, especially in Asia. They have also become more sophisticated communicators, using traditional and digital media to launch campaigns, lobby shareholders, and address journalists directly. This shift in positioning as a “force for good” has been assisted by policy changes in some of Asia's key markets. Most notable is Japan, where Prime Minister Shinzo Abe is driving corporate governance reforms and strengthening the protection of minority shareholders. Other markets—including Hong Kong, South Korea, Singapore, and China—are following suit, and opportunities for shareholder activists are expected to multiply across Asia. According to JP Morgan, there were 106 activist campaigns in Asia last year, up from just 10 in 2011. In this new environment, many management teams in Asia are now more willing to engage with activists. And while it does not mean that companies will immediately agree to activists' requests, it does mean that companies are having to be much clearer about explaining their strategies to all stakeholders. It is important for companies to prepare for any issues early, know their audience, and clearly communicate the company's long-term vision.  An activist investor's biggest weapon is being a “champion of change,” and many dissatisfied investors will often choose “change for the sake of change.” Companies must actively define their strategic and financial goals and provide a clear path to realizing them—otherwise, activist investors will be only too happy to point the management in the right direction.

Meet the Hedge Fund That Is Making Life Hell for CEOs
" Crain's Chicago Business (08/10/18) Pletz, John"

Engine Capital, a small New York-based hedge fund, recently forced changes at Navigant Consulting (NCI) and InnerWorkings (INWK) by threatening public proxy fights. On July 29, InnerWorkings agreed to add two independent board members and hire a consulting firm to identify cost-cutting strategies. In May, Navigant said it would increase its share-buyback program by $175 million and allow the hedge fund to address the board about executive compensation and performance goals. "We are at record levels of activism," says Kai Liekefett, a New York-based partner at Sidley Austin and chairman of the law firm's shareholder activism practice who has represented both Navigant and InnerWorkings. Liekefett says there have been more than 90 proxy fights already this year, up from 79 in all of 2017. Charles Elson, director of the Weinberg Center for Corporate Governance at the University of Delaware, says, "Small companies flew under the radar before." Engine Capital was founded five years ago by Arnaud Ajdler and first emerged in late 2013 when it threatened a proxy fight at LSB Industries (LXU). It has about 50 investments, valued at about $190 million, according to Nasdaq, with stakes in Navigant and InnerWorkings of 4.4% and less than 2%, respectively. "Proxy fights are the new normal," says Liekefett. "In the good old days, if a company's board didn't do what you wanted, you voted with your feet by selling your shares. Now you launch a proxy fight."

Take ESG Ratings With a Grain of Salt
" Financial Advisor (08/07/18) Funk, Karina; Dwyer, Emily"

Research firms that focus on environmental, social, and governance (ESG) matters provide helpful information to investment firms. However, investors should not rely solely on the ratings developed from their research to make investment decisions, according to Karina Funk, portfolio manager and head of sustainable investing at Brown Advisory, and Emily Dwyer, research analyst at Brown Advisory. Investors need to engage in diligent, primary research in order to uncover key information on ESG matters. One problem facing ESG ratings is the different factors that the various ratings systems prioritize when defining a "good" company, which means that the offerings can deliver wildly different results. A Brown Advisory analysis last year comparing six leading ESG ratings systems revealed that a typical company might receive a top-quartile rating from one ratings system, and a bottom-quartile rating from another. Investors should ask what they can learn from each ratings system. Rather than view ESG grades as an endpoint, investors should approach ratings as a resource that can help spark questions and lead to further digging for information, according to Funk and Dwyer.

Toll of Scuppered Deals This Year Hits $540 Billion
" Financial Times (08/12/18) Platt, Eric; Fontanella-Khan, James"

So far this year, acquisitions worth more than $540 billion have been derailed in part due to increased government scrutiny. Increasingly, companies are using foreign investment laws to block deals in the technology and utilities industries, among others, and antitrust regulators have put the brakes on several multibillion-dollar transactions. These deals include Broadcom's (AVGO) $142 billion hostile bid for rival Qualcomm (QCOM), which was blocked by U.S. President Donald Trump on national security grounds, and Qualcomm's $44 billion pursuit of Netherlands-based NXP Semiconductors (NXPI), which China refused to approve amid an escalating trade dispute with Trump. Other deals that were unsuccessful include the $3.9 billion merger of local broadcast operators Tribune (TRCO) and Sinclair (SBGI) and U.S. grocer Albertsons' (ABS) $5.6 billion takeover of drugstore chain Rite Aid (RAD). In addition to regulatory scrutiny, advisers say shareholder activism has added a significant amount of uncertainty to pending transactions. "You used to sign up a deal and, absent a topping bid, shareholder approval was largely on autopilot," said Daniel Wolf, M&A partner at Kirkland & Ellis. "Now, the possibility of deal-related activism, on the buyer or the target, has become part of the discussion."

The Proxy Advisers’ Veto
" Wall Street Journal (08/10/18) The Editorial Board"

Rite Aid (RAD) and Albertsons’ termination of their seven-month engagement last week highlights the outsize role that proxy advisory firms increasingly play in dictating shareholder interests, writes the Wall Street Journal Editorial Board. After the two companies proposed a merger earlier this year, Glass Lewis and Institutional Shareholder Services (ISS) protested that the deal undervalued Rite Aid shares. ISS said that the deal “would introduce a new set of risks associated with the grocery business, and the combined company’s leverage could limit investment in two evolving business environments.” The firm also cited a conflict of interest because Albertsons CEO Bob Miller had served on Rite Aid’s board. The proxy firms may be right that the combined company would have had too much debt to invest in new technology, and the market is changing so fast that shareholders might be better off waiting. Expanding Rite Aid’s retail clinics and small pharmacy benefit management operation could add more value than combining with Albertsons. Yet pharmacy benefit managers are facing increased regulatory scrutiny, and it is uncertain whether Rite Aid can survive as a standalone company. The objections by Glass Lewis and ISS carry weight since the Securities and Exchange Commission allows institutional shareholders to fulfill their fiduciary obligations by relying on the advice of third-party proxy advisers. Proxy firms also don’t have to demonstrate that their recommendations are in the best interest of shareholders, which can cause conflicts of interest. For example, Glass Lewis is partly owned by Alberta Investment Management Corporation, which is one of Rite Aid’s 10 largest shareholders. Corporate management is accountable to shareholders, but who will hold proxy firms responsible if they low-balled the value of the Albertsons-Rite Aid deal?

Is It Time to Regulate Proxy Advisory Firms?
" Cooley PubCo (08/08/18) Posner, Cydney"

The debate over regulating proxy advisory firms is once again gathering steam. According to "The Big Thumb on the Scale: An Overview of the Proxy Advisory Industry" from Stanford's Rock Center for Corporate Governance, although proxy advisory firms influence institutional voting decisions and corporate governance choices to a significant extent, it “is not clear that the recommendations of these firms are correct and generally lead to better outcomes for companies and their shareholders.” The paper thus suggests that some type of regulation of proxy advisory firms might be necessary to increase their transparency and improve the reliability of their recommendations. Specifically, it recommends regulation that could include the following requirements: maintain adequate resources, improve the reliability of recommendations, require reliability testing, provide past recommendation data for third-party evaluation, increase transparency about model and guideline development, develop reliable mechanisms for incorporating market feedback on models and guidelines, disclose commercial relationships with issuers, and impose an explicit fiduciary-duty standard. In addition, the paper suggests eliminating the requirement that institutional holders vote on all proxy items, which, the authors suggest, would enable investors to decide whether or not to buy recommendations from proxy advisors.

Meet the Tesla Board Being Tested Like Never Before by Musk
" Bloomberg (08/09/18) Greenfield, Rebecca"

The independence and competence of the board of Tesla (TSLA) will be tested like never before following Chairman Elon Musk's recent tweet that he might take the electric-car maker private. The board has faced pressure this year as Tesla burned through billions in cash and struggled to meet certain production goals. A shareholder pushed for the election of an independent chairman, and CtW Investment Group waged a battle against the reelection of three directors who were up for vote. Several of Tesla's directors have close business or personal ties to the chairman and CEO. Antonio Gracias, founder of Valor Equity Partners, serves as lead independent director, and Brad Buss, former SolarCity chief financial officer, is another director that the electric-car maker deems to be independent, but they are not classified as independent by proxy advisory firms Institutional Shareholder Services and Glass Lewis. Kimbal Musk, a food entrepreneur and Elon's brother, is another director. "Having a strong independent board is extremely important for us and the funds we work with to ensure that this has been looked at through independent eyes," said Dieter Waizenegger, the executive director of CtW.

Beards Are Back. That's Bad News for Gillette
" WFMZ-TV 69 (PA) (08/08/2018) Meyersohn, Nathaniel"

Procter & Gamble's (PG) acquisition of Gillette in 2005, the largest transaction in history at that time, has not always panned out as P&G hoped. Warren Buffett, Gillette's largest shareholder then, called the $57 billion purchase a "dream deal." Although the market has rebounded, Gillette continues to struggle due to a slowdown in shaving. American men are not shaving with old-fashioned razors like they used to. Investor Nelson Peltz, who won a seat on P&G's board after a lengthy proxy fight, criticized executives for not mounting a more effective response to cheaper, direct-to-consumer online subscription shaving clubs. The company decided to cut prices by an average of 12% on its shaving products last year, and also expanded cheaper choices. The moves helped Gillette regain share and reverse sales declines. In addition, the relaunch of Gillette on Demand, a digital subscription platform that includes text-to-order and free shipping, has given the company a new tool to acquire customers online and fight off the direct-to-consumer online subscription shaving clubs.

Video: There Is a Lot of Potential for ThyssenKrupp, CEO Says
" Bloomberg (08/09/18)"

Speaking on "Bloomberg Daybreak: Europe," ThyssenKrupp CEO Guido Kerkhoff discusses the current state of the business, the breaking up of the company, and activist investors.

For Icahn, Amazon Is a Reason Not to Do a Deal
" New York Times (08/08/18) de la Merced, Michael J."

In opposing Cigna's (CI) proposed acquisition of Express Scripts (ESRX), investor Carl Icahn cites the threat of competition from Amazon (AMZN). In a public letter to shareholders of Cigna, in which Icahn owns a stake of undisclosed size, he said, "Purchasing Express Scripts may well become one of the worst blunders in corporate history, ranking up there with the Time Warner/AOL fiasco and General Electric's (GE) long-running string of value destruction." In addition to criticizing the price Cigna is paying and questioning whether the White House's desire to lower drug prices could put a damper on Express Scripts' profitability, he argued that Amazon's acquisition of online pharmacy PillPack puts the company in competition with Express Scripts' own mail-order pharmacy business. Icahn wrote, "With their 100 million prime members, Amazon has become one of the toughest competitors in history (feel free to ask the retail industry). While their ultimate health care plans are not revealed yet, it is almost certain the first step of a much larger play in the pharma distribution space. Make no mistake, Express Scripts is no Apple (AAPL) and breaking into the PBM ecosystem is not that difficult for a company that already has the systems, the network, and the scale that Amazon does. Knowing this, it is absurd for Cigna to now walk into the minefield that Express Scripts might well become."

Asia Embraces Dual-Class Shares, and Investor Activists Smolder
" Bloomberg (08/07/18) Robertson, Benjamin; Tan, Andrea"

Shareholder advocates in Asia have lost out in the race for technology listings. Hong Kong and Singapore’s stock exchanges this year permitted companies to list shares with different voting rights, despite concerns that dual-class shares would harm the long-term integrity of markets by elevating corporate founders’ rights over other investors. Corporate governance watchers warn that outsize voting rights make it impossible to oust senior management or enforce discipline. Meanwhile, the growing value of tech companies highlights why there is no turning back for Asian exchanges. For example, Chinese smartphone maker Xiaomi Corp. raised $5.4 billion in an initial public offering in Hong Kong in July, shortly after the new rules took effect. It is now one of the most actively traded stocks on the exchange and its second-largest tech company by market value. "It looks like dual-class shares are here for now," said David Smith, Asia head of corporate governance at Aberdeen Standard Investments. "We need to be careful, though, that investor protection is balanced with this commercial desire to attract listings."

Miners Spend on Shareholders, Not Projects
" Wall Street Journal (08/07/18) Hoyle, Rhiannon; Patterson, Scott"

The globe's biggest mining companies are spending big on shareholders via dividends and share buybacks, following through on a pledge to increase payouts as they come out of a market slump. Executives have been forced to defend the payouts though, amid worries that they are sacrificing opportunities for growth, like making deals or building mines. Iron-ore giant Vale SA (VALE) reported a jump in first-half underlying earnings and said it would give shareholders $2.1 billion in dividends and buy back shares worth $1 billion. Vale, which recorded second-quarter capital expenditures at the lowest level in 13 years, said buying shares "is one of the best investments for its excess cash." In 2017, BHP (BBL), Rio Tinto, Glencore, Vale, and Anglo American PLC gave investors dividends worth over 50% more than the prior year, according to S&P Global Ratings.

Opinion: Time to Forget Japanese Myth of Good and Bad Shareholders
" Nikkei Asian Review (08/07/18) Givens, Stephen"

Investors who recently submitted proposals at Japanese companies for anything from adding outside director to reducing cross-shareholdings found themselves fighting off accusations of being "bad" shareholders. Companies accused them of being motivated solely by greed and short-term profit. Orix Senior Chairman Yoshihiko Miyauchi, among others, dismissed shareholder activism as a "shortsighted money game." Reporters joined company management in cross-examining shareholders about their "long-term intentions," writes Stephen Givens, a professor in the Law Faculty of Sophia University. In the mid-2000s, the government, courts, and corporate establishment similarly bandied about the idea of "good" and "bad" shareholders when the first wave of shareholder activism reached Japanese shores. The "good" shareholder, or the investor who resists the temptation to sell their shares when a company is in trouble, is self-serving propaganda designed to justify the web of cross-shareholdings. Investors who sell their shares are said to be "bad" because they strip a company of capital, which is not true. The fable of "good" and "bad" shareholders should be put to bed, and the merits and disadvantages of cross-shareholdings deserves a rigorous debate, according to Givens.

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