4/29/2029

Shareholder Activism in Asia Drives Global Total to Record High

Nikkei Asia (04/29/29) Shikata, Masayuki

Activist shareholders had their busiest year on record in 2024, with the Asia-Pacific region making up a fifth of campaigns worldwide, pushing some companies higher in the stock market and spurring others to consider going private. The worldwide tally of activist campaigns rose by six to 258, up by half from three years earlier, according to data from financial advisory Lazard. Campaigns in the Asia-Pacific tripled over that period to 57, growing about 30% on the year. Japan accounted for more than 60% of the regional total with 37, an all-time high. Activity is picking up this year as well in the run-up to general shareholders meetings in June. South Korea saw 14 campaigns, a jump of 10 from 2023. Critics say South Korean conglomerates are often controlled by minority investors that care too little about other shareholders. Australia and Hong Kong saw increases of one activist campaign each. North America made up half the global total, down from 60% in 2022 and 85% in 2014. Europe had 62 campaigns last year. The upswing in Japan has been fueled by the push for corporate governance reform since 2013 and the Tokyo Stock Exchange's 2023 call for companies to be more mindful of their share prices. The bourse has encouraged corporations to focus less on share buybacks and dividends than on steps for long-term growth, such as capital spending and the sale of unprofitable businesses. Demands for capital allocation to improve return on investment accounted for 51% of activist activity in Japan last year, significantly higher than the five-year average of 32%. U.S.-based Dalton Investments called on Japanese snack maker Ezaki Glico (2206) to amend its articles of incorporation to allow shareholder returns to be decided by investors as well, not just the board of directors. Though the proposal was rejected, it won more than 40% support, and Glico itself put forward a similar measure that was approved at the following general shareholders meeting in March. U.K.-based Palliser Capital took a stake last year in developer Tokyo Tatemono (8804) and argued that more efficient use of its capital, such as selling a cross-held stake in peer Hulic, would boost corporate value. Activist investors are increasingly seeking to lock in unrealized gains from rising land prices, reaping quick profits from property sales that can go toward dividends. Companies in the Tokyo Stock Exchange's broad Topix index had 25.88 trillion yen ($181 billion at current rates) in unrealized gains on property holdings at the end of March 2024, up about 20% from four years earlier. After buying into Mitsui Fudosan (8801) in 2024, U.S.-based Elliott Investment Management this year took a stake in Sumitomo Realty & Development (8830) and is expected to push for the developer to sell real estate holdings. This month, Dalton sent a letter to Fuji Media Holdings (4676), parent of Fuji Television, calling for it to spin off its real estate business and replace its board of directors. Activist campaigns have sparked share price rallies at some companies. Shares of elevator maker Fujitec (6406) were up roughly 80% from March 2023, when it dismissed Takakazu Uchiyama -- a member of the founding family -- as chairman under pressure from Oasis Management. The rise in demands from activists "creates a sense of tension among management, including at companies that don't receive such proposals," said Masatoshi Kikuchi, chief equity strategist at Mizuho Securities. Previously tight cross-shareholdings are being unwound, and reasonable proposals from minority investors are more likely to garner support from foreign shareholders. Some companies are going private to shield themselves from perceived pressure. Investments by buyout funds targeting mature companies in the Asia-Pacific were the highest in three years in 2024, according to Deloitte Touche Tohmatsu. Toyota Industries (6201) is considering going this route after facing pressure from investment funds last year to take steps such as dissolving a parent-child listing with a subsidiary and buying back more shares. Toyota Industries holds a 9% stake in Toyota Motor (7203). The automaker "may have proposed having [Toyota Industries] go private as a precautionary measure," said a source at an investment bank.

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7/3/2025

Autodesk’s Andrew Anagnost on Surviving Activist Engagement

Semafor (07/03/25) Edgecliffe-Johnson, Andrew

Starboard Value disclosed a roughly $500 million stake in Autodesk (ADSK) last year, after the $67 billion design software company revealed it had conducted an internal investigation into its accounting practices. In addition to the familiar activist calls for cost cuts and stock buybacks, Jeff Smith’s hedge fund urged Autodesk’s board to reassess Andew Anagnost’s position as CEO. Starboard’s first salvo seemed to have fizzled by the time Autodesk announced two new independent directors last December. But the feared investor returned this year, threatening a proxy fight to put three of its nominees on the company’s board. The two sides settled in April, agreeing to “ongoing collaboration” after Autodesk appointed another two new directors — neither of whom was a Starboard representative — and cut about 1,350 jobs, or 9% of its workforce. The company’s stock has outperformed its peers over the past year. Asked what lessons he learned from the high-profile standoff, Anagnost says that a CEO’s first response when an activist appears on their shareholder register should not be, “How can I get rid of them?” Instead, he says, the question should be, “What are they saying that’s true and what are they saying that’s false?” Most people “go immediately to the false and forget the true,” he says, but by doing so, they risk missing a signal that’s being sent by the investment community. Even if a company believes that three out of four things on an activist’s list of grievances are false, he says, “it’s the thing that is true that the investment community will anchor on.” Anagnost found common ground with Starboard on the argument that Autodesk’s profit margins could be improved. What mattered then was uniting his board to acknowledge that truth, push back against “the fallacies,” and establish “a bright line about what was acceptable for us and what wasn’t.” That resistance was necessary, he says, because of the mismatch between his role and that of an investor like Starboard. “Most activists don’t care about the long-term success of the company,” he says. “I know they’ll say they do. And I applaud activists that solve problems and help companies move forward from tough situations. But my job is to think about the next five years of Autodesk, not the next two. And you have to strike that balance.” As artificial intelligence quickens the pace of change, Anagnost is allowing Autodesk to place a few more bets on what the future might look like, but ensuring that they are guided by his educated guesses. His message, he says, is: “Let’s do a few things and do them well, and let’s make sure that innovation comes from the bottom up, but direction tension comes from the top down in a balanced way.” Anagnost has positioned Autodesk to focus on serving a “design and make” workforce in architecture, engineering, construction, and manufacturing — jobs that defy old “blue-collar” and “white-collar” definitions, combining technical fluency and creative execution. Its software powers robots, was used in the reconstruction of Notre Dame in Paris, and is helping design venues for the 2028 Olympic Games in Los Angeles. One of Anagnost’s bets on the future is that reshoring will continue to reshape global supply chains in ways that create more demand for Autodesk’s products. In the short term, though, President Donald Trump’s tariff-driven approach to bringing manufacturing back to the United States is causing uncertainty for Autodesk’s clients. “When the ball moves constantly and [they’re] trying to figure out where it’s going to go … people freeze investing, they slow down and they wait.”

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7/3/2025

Justices Poised to Shape Funds’ Future in Activist Investor Case

Bloomberg Law (07/03/25) Miller, Ben

The U.S. Supreme Court’s choice to take up a dispute next term over activist investors’ ability to challenge corporate resolutions signals the justices are eager to clarify a major tenet of investment fund operations. The high court this week agreed to scrutinize a ruling by the U.S. Court of Appeals for the Second Circuit holding that Saba Capital, run by hedge fund manager Boaz Weinstein, had the right to sue a series of closed-end funds under the 1940 Investment Company Act. The case sparked interest from government lawyers defending the exclusive right of the SEC to regulate investment companies under the 85-year-old law. Powerhouse industry groups such as the US Chamber of Commerce argued the Second Circuit’s ruling enables private litigants to challenge a vast array of common business contracts. A ruling by the justices in favor of the funds, on the other hand, would remove an avenue for investors such as Saba that say they’re trying to unlock more value for shareholders. Saba was challenging a move by closed-end fund provider FS Credit Opportunities Corp. (FSCO) to adopt a resolution making it harder for outside investors to gain control of the funds through shareholder voting rights. “One of the things that makes activism in this space difficult is that most of the people who hold closed-end funds are retail investors, who are sort of infamous for not voting at all,” said Ann Lipton, a professor at University of Colorado Law School focused on corporate governance. The case raises broad questions about who’s in charge of overseeing mutual funds, exchange-traded funds, and additional funds managed by BlackRock Inc. (BLK) and other US-registered companies that together handle nearly $40 trillion in assets, including for long-term retail investors. Closed-end funds such as the petitioners have leeway to trade at various prices depending on how much investors are willing to pay for the shares. That enables investors like Saba to buy when shares are low, take steps to inflate the price, and then sell for a short-term profit. “Given how both the solicitor general and SEC have weighed in expressing the views of the current administration, I think the argument made there about a potential impact on funds, advisers, shareholders, all industry participants writ large will likely be of acute interest to the more conservative members of the bench,” said Amy Roy, a partner in Ropes & Gray LLP’s securities litigation group. Roy represented the Securities Industry and Financial Markets Association and the Investment Company Institute in briefs supporting the funds’ petition to the high court. Saba’s right to sue fund managers and the funds’ use of defensive tactics to bolster controlling shareholders over activists now hang in the balance as the Supreme Court prepares to take up the case. If the justices rule in Saba’s favor, it would result in “the floodgates being opened with all these people coming in and effectively asking the courts to opine on violations of the Investment Company Act,” said Kristin Ornstein, member at Dykema Gossett PLLC who has represented fund managers. “The definition of what constitutes an investment company itself is unbelievably complex,” she added. “All of that is supposed to be enforced and regulated by the SEC, but then you’d be allowing all these courts to make that decision themselves.” The petitioners and their backers also said a win for Saba would lead to an avalanche of cases, especially in the Second Circuit covering New York, where most investment funds can be sued. A ruling in favor of the closed-end fund managers, on the other hand, wouldn’t entirely strip activist investors of tools to sway how funds operate through voting and other means, according to Ornstein. “It really keeps things par for the course,” she said. Lipton disagreed, saying a Supreme Court win for the funds could significantly harm the strategy Saba has employed and leave it with limited options through the proxy voting process.

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7/2/2025

Management Booted Out as Japan's Shareholders Flex Their Muscles in AGMs

Reuters (07/02/25) Bridge, Anton

Japan's annual general meetings in June saw a CEO voted out and an entire board of directors replaced in a sign shareholders are increasingly holding management to account and providing impetus to regulatory moves to boost corporate value and share prices. Authorities in Japan, which is emerging from years of deflation, have ramped up calls for more proactive and vocal shareholder stewardship over the last two years — and the AGMs suggest that activists and domestic institutional investors are making the same arguments to improve corporate performance. An increasingly assertive domestic shareholder base is likely to sway management changes, investors and advisors say, providing momentum to Tokyo Stock Exchange's quest to make the world's fourth-largest economy an attractive destination for international and domestic investment. Investors are already flocking in, with the TSE's reforms helping spark a rally in Japanese stocks, which last year scaled an all-time record high and have since been buoyant. Last month chemicals firm Taiyo Holdings' (4626) chief executive officer Eiji Sato and the entire board of directors of electrical parts maker Tokyo Cosmos Electric (6772) were forced to step down. "It’s extremely rare in Japan that a boss or a board member loses his job merely because he's deeply disappointing," said Nicholas Smith, strategist at CLSA Securities. Whereas in the past management has typically only been forced out in cases of misconduct or fraud, the prospect of ouster for perceived poor business decisions is prompting executives and the boards of companies to change course to meet shareholder demands. "There's no aftermarket for dud managers. There's negligible mid-career hiring and these people are lifers at their companies so all of this is quietly terrifying," Smith said. Taiyo CEO Sato was punished for diversifying into pharmaceuticals, which had poorer margins than its core business, dismissing privatization proposals from private equity funds and because he was deemed to be overpaid, Smith said. "This is one of the rare cases of a CEO being ousted for corporate governance reasons rather than legal ones," said Seth Fischer, chief investment officer at activist investor Oasis Management, which voted against Sato. Taiyo's largest shareholder DIC Corp (4631) and founding family also voted against Sato, Tokyo Shoko Research showed. "Now management can be voted out for not making any changes and other companies are moving towards needing to do something," Fischer added. Managers have cause for concern as domestic investors adopt more stringent shareholder voting guidelines in line with the TSE's reform recommendations, which has made voting against directors more commonplace. For instance, Sumitomo Mitsui Trust Asset Management's votes against management proposals in the 12 months ended June 2024 stood at 22.1%, up from 19.8% the year prior. Increasingly this means domestic asset managers vote in the same way as activists. "There's more alignment between activists and domestic shareholders on capital policy which is leaving companies with nowhere to hide," said Govinda Finn, a governance researcher at Kobe University. "We have an incredibly good relationship with domestic investors and increasingly engage with them to share ideas about what we think the issues at companies are," Fischer said. The new prospect of domestic investors voting against management has prompted firms to take preventative action, said Hiroo Shimoda, senior manager at MUFJ Trust and Banking, which advises firms on shareholder relations. "More and more companies think it would be a real problem if their domestic shareholders and activists came to be in agreement, so they rework their strategies in advance," Shimoda said.

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7/1/2025

Activist Investors Slow Pace of Demands amid Global Uncertainties

Reuters (07/01/25) Herbst-Bayliss, Svea

Activist investors who push companies for operational changes and management shake-ups waged fewer campaigns during the first half of 2025 as tariffs, wars, and U.S. President Donald Trump's unpredictable policies made them more cautious, new data show. The pace of investor demands, aimed at pushing up a company's share price, fell 12% to 129 campaigns launched during the first six months of 2025, compared with 147 a year ago, according to numbers compiled by investment bank Barclays. "The environment was shaped by mixed economic signals, fears about wars and geopolitical tensions and the instability created by future tariffs and trade wars," said Jim Rossman, global head of shareholder advisory at Barclays. "And taken together that is creating an environment of caution." The slowdown comes after a record number of corporate agitators made demands last year and the pace of campaigns jumped by 17% in the first three months of this year. Elliott Investment Management, among the world's most powerful corporate activists, pressed for changes at six companies, including BP (BP) and Hewlett Packard Enterprise (HPE), roughly half the number of campaigns it launched a year ago. But it deployed $8.8 billion in assets, the most of any activist this year. Also so-called first-timers who were becoming more comfortable employing activist tactics last year stepped to the sidelines late in the first half. During the second quarter when stock markets gyrated as Trump threatened harsher tariffs only to reverse course before suggesting them again, campaigns launched by first-timers dropped 27% from the first quarter of this year, the data show. But the slowdown does not hint at a pause in activity or suggest activist investors are going soft, Rossman said. Corporate agitators, including Mantle Ridge, Ancora Holdings and Jana Partners have, as a group, forced bigger changes at companies in the first half of this year than a year ago, the data show. Settlements between activist investors and companies jumped 32% to 37 in the first half of 2025 and left activists with 86 board seats, marking a 16% increase. They won seats, often a measure of success for activists, at companies ranging from industrial gases maker Air Products and Chemicals (APD) to food processing company Lamb Weston (LW). "As a group activists are having a strong year, winning settlements and board seats and managing to engage with a number of companies privately," Rossman said. Most activists continue to focus their attention on companies in the United States with 60 campaigns launched, down from 61 a year earlier. There were 37 campaigns in Japan, down from 51 a year ago. Activity in Europe declined by 17% to 24 campaigns launched in the first half compared with a year ago.

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6/30/2025

Opinion: Shell is Right to be Wary. Gobbling up BP Will Lead to Indigestion

The Times (London) (06/30/25) Yeomans, Jon

"Wael Sawan must feel like he’s going blue in the face," writes Jon Yeomans, business editor at The Times. "How many times, the boss of Shell (SHEL) asks himself, can he say the same thing over and over?" Last week, Shell resorted to a stock market announcement to insist “it has not been actively considering making an offer for BP Plc (BP)," that it has not made an approach, and that “no talks have taken place with BP.” However, even that has not stopped the chatter swirling. "At its heart," says Yeomans, "this is a debate about whether one of Britain's biggest companies should buy another of Britain's biggest companies — and what it means for the UK, and the stock market, should it happen." BP and Shell make for contrasting case studies. At the start of this decade, both poured money into renewable energy and slightly disavowed the stuff that makes them money: oil and gas. For their pains, both attracted unhappy activist investors. Sawan, appointed in 2023, moved quickly to wheel Shell back around to what it does best — fossil fuels — and mollified Third Point, the activist thorn in his side. He has been keeping his investors broadly happy ever since, paying dividends and buying back shares. The company's market capitalization is now £152 billion. BP has been a sorrier saga. Former boss Bernard Looney, the architect of its green strategy, was ousted over matters relating to his tendency to, er, date the staff. His successor, former financial boss Murray Auchincloss, took over in late 2023 and has attempted a “reset” of the strategy, rowing back from Looney's greener tilt. It hasn't quite wowed the stock market (market cap now: just under £60 billion). Activist investor Elliott Management popped up earlier this year to scare BP straight. So far, it has encouraged chair Helge Lund to cash in his chips, and wants BP to go faster in cutting costs, noting that its headcount is less productive than Shell's. The activist is thought to believe BP can still stand on its own two feet. Much will hinge on Lund's replacement, who will be chosen by a committee led by Aviva chief executive Dame Amanda Blanc (as if she wasn't busy enough overseeing the insurer's takeover of Direct Line). As senior independent director at BP, it's her job to find a chair who can steady the ship and then, most observers suspect, find a new chief executive. BP insiders insist the company is already getting a grip on its operations, putting bits up for sale and ramping up the cost-savings. The hunt for a new chair is being stepped up, with a view to completing the process this year, rather than it dragging on into 2026. "It can't happen soon enough," says Yeomans. "BP is vulnerable to a takeover, if not by Shell, then someone else. Last week brought the unedifying sight of candidates for the chair's job seemingly ruling themselves out via the press." There are certainly prizes to be won in carving up BP's assets and slimming down its cost base. A merger could create a European oil and gas heavyweight to take on the U.S. giants. A combined BP/Shell would have a range of complementary oil wells across the globe. Potential cost-savings would run to $5 billion (£3.5 billion) or more, analysts reckon. The downside, however, is that, while comparatively cheap, BP may not be quite cheap enough. A figure of $80 billion has been mooted to buy BP, but Shell would also have to absorb BP's debt — the biggest, relatively speaking, in the sector. And its “downstream” arm — the bit with the refineries and petrol stations — is likely to attract scrutiny from competition watchdogs. A combined company would be a dominant player in liquefied natural gas, which could cause further competition issues, particularly in China. Perhaps most unnerving of all, for management and investors, would be the hit to BP and Shell's trading desks. These are hugely profitable, and not terribly transparent, divisions. Lumping them together might be a case of “one plus one adding up to less than two,” as BNP Paribas analysts put it. You don't want to kill the golden goose. "In short, a merger would be messy," Yeomans concludes. "And that's before we consider the job cuts that could result as Shell's 96,000 staff collide with BP's 100,000. That's less of a concern for hard-nosed City advisers with pound signs in their eyes, but probably of passing interest to government ministers and nervous staff." There is another wrinkle to this deal that may give the City pause: concentration risk. Under Financial Conduct Authority rules, investment funds are not allowed to have more than 10% of their holdings in one company. Shell and BP's combined weighting in the FTSE 100, at current levels, would be above 11%. That poses an unusual quandary for those funds that try to match the FTSE 100, potentially forcing them to sell down their Shell/BP holding. Of course, this problem would be solved if Shell opted to switch its listing to New York, as Sawan has pondered. Of course, everything has its price. Should the oil price weaken further, Middle Eastern tensions ebb and BP fail to stem its slide, Shell may come knocking. "For now, though," according to Yeomans, "Sawan might be best advised to keep saying — once more with feeling — “I'm not buying BP."

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6/27/2025

Ackman Wants a New Rival to Take on ‘Superb’ Mamdani in NYC

Bloomberg (06/27/25) Cattan, Nacha

Bill Ackman issued a call to his 1.8 million followers on social media to ask for suggestions on the “best centrist” candidate to take on Zohran Mamdani in the race for New York City’s mayor this November. “If someone is ready to raise their hand, I will take care of the fundraising,” Ackman wrote in a lengthy post on X, describing Mamdani’s strengths and warning of the impact of his policies on the city. Mamdani, a self-described Democratic Socialist, shocked the political establishment by easily beating Andrew Cuomo in the Democratic primary for Mayor. The 33-year-old Queens assemblyman ran on a platform highlighting the city’s affordability crisis and has proposed freezing rents and raising taxes on the wealthy and businesses to pay for free childcare and free buses. Ackman, a former Democrat who’s become a vocal supporter of President Donald Trump, said that he believes Mamdani won because he’s a “superb politician who ran a remarkable and inspiring campaign” and not because of his actual policies. The billionaire investor had financially supported Cuomo’s campaign, but slammed the former Governor for running a terrible race, and ridiculed the Democratic Party’s “aging and over-the-hill leadership.” The hedge fund manager criticized the candidate’s policies, saying “socialism has no place in the economic capital of our country” and warned that a Mamdani mayoralty risks creating an exodus of businesses and the ultra-wealthy from the city. If 100 of the highest taxpayers in just his industry become non-residents it could reduce state and city tax revenues by between $5 billion and $10 billion, Ackman calculated. Ackman is one of several billionaires in the city seeking options after Cuomo’s failure. The former Governor’s backers, many of them opposed to Mamdani’s platform, are discussing whether to pivot their support to current Mayor Eric Adams, Bloomberg News reported, and are encouraging Cuomo to drop out of the race entirely to avoid being a spoiler. Adams, who won the 2021 election as a Democrat, is this time running as an independent after he became the first sitting mayor in the city’s modern history to be indicted on federal charges. The Republican candidate — radio host Curtis Sliwa — meanwhile faces a mammoth challenge in heavily Democratic New York. Ackman cited former Mayor Michael R. Bloomberg, the founder and majority owner of Bloomberg News parent Bloomberg LP, as a “reference standard” for the type of candidate that could emerge from the New York business community. Ackman said he has someone in mind for the role, but wouldn’t name that person because as a Trump supporter Ackman’s endorsement would not be well received by Democrats. Ackman claimed there are “hundreds of millions of dollars” available to back a viable competitor to Mamdani that could be assembled overnight. He said any new candidate at this stage would have to be a write-in on the ballot because the other candidates haven’t established a nominating committee if they were to pull out, which he said means no one can take their spot on the ballot. Ackman suggested that being a write-in wouldn’t be a major problem for this election and could even encourage turnout. “The risk/reward of running for mayor over the next 132 days is extremely compelling as the cost in time and energy is small, and the upside is enormous,” Ackman wrote. “If the candidate does not win, there is no harm, no foul, because the perceived probability of beating the Democratic nominee in a NYC mayoral election is extremely small.”

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6/23/2025

Texas, Oklahoma, and Nevada Make Changes to Lure Business amid Delaware’s ‘Dexit’ Concern

Associated Press (06/23/25) Lau, Mingson

Lawmakers in Texas, Oklahoma, and Nevada have recently approved changes aimed at helping their states dip into the lucrative side of corporate litigation that Delaware, with a specialized court and business-friendly laws, has dominated as the world’s incorporation capital. Concerned that these changes may lure corporations away from Delaware, thereby causing the small state to lose millions in corporate franchise taxes, Delaware officials have responded with their own changes to solidify their status in the business world. In Texas, which opened a business court last year, there was bipartisan support for legislation diminishing shareholder powers and giving businesses more legal protections against shareholder lawsuits. Nevada lawmakers approved a corporation-friendly update to its business laws, also with bipartisan support, and separately moved toward asking voters to consider changing the state constitution to create a dedicated business court with appointed judges. Elon Musk had advocated both states as better options for incorporation after a Delaware judge struck down his shareholder-approved $56 billion compensation package from Tesla (TSLA). Musk’s businesses have also changed where they’re incorporated: Tesla and SpaceX relocated to Texas, while Neuralink moved to Nevada. Oklahoma also took action to get in the mix, as the Republican-led Legislature sanctioned the creation of business courts in its two most populous counties, a move the governor said would help Oklahoma become the most business-friendly state. “This is an area in which states, in many ways, are behaving like businesses,” said Robert Ahdieh, dean of the Texas A&M University School of Law. “Delaware is selling something. Texas is selling something that they hold out to be better. So it is very much a comparative exercise.” Since 2024, several billion-dollar companies including TripAdvisor (TRIP) and Dropbox (DBX) have relocated to Nevada. More than a dozen others, including the AMC (AMC) theater chain and video game developer Roblox Corporation (RBLX), have announced plans to incorporate there this year. Latin American e-commerce giant MercadoLibre (MELI) filed a request for shareholders to approve a Texas relocation in April, citing Delaware’s “less predictable” decision-making process — a common thought among exiting companies. Amid concerns about more companies reincorporating elsewhere in a so-called “Dexit,” Delaware passed its own legislation to help protect its status as the corporate capital, limiting shareholders’ access to records and increasing protections for leadership. Opposition dubbed it “the Billionaire’s Bill.” “Ultimately, I think the damage is done because businesses successfully undermined shareholder rights in Delaware,” said Corey Frayer, director of investor protection at Consumer Federation of America, who argues that the Delaware bill was a rash acquiescence to “Dexit” concerns. However, some business law experts, like Ahdieh, say the average shareholder is focused on increasing their returns and does not care about shareholder power or where the company is incorporated. Delaware Gov. Matt Meyer has vowed to win back companies that leave, arguing his state’s experience “beats going to Vegas and rolling the dice.” Companies flock to Delaware for its well-respected Court of Chancery, a sophisticated and separate forum focusing on equity, corporate and business law. This incorporation machine generates $2.2 billion annually, about one-third of the state’s operating budget. There is comfort in working in the familiarity of Delaware law, said Ahdieh, but that predictability has come into question in the last decade as corporate leaders grew unhappy over losing precedent-setting court decisions governing corporate conflicts of interest. Widener University Commonwealth law school professor Christian Johnson acknowledged a shift in Delaware but said reincorporating elsewhere might be “a bit of an overreaction.” Although a few big-name companies have moved, there are still more than 2 million legal entities incorporated in Delaware, including two-thirds of the Fortune 500. Statutes in Texas and Nevada may appear more flexible, but they have not been extensively tested, and their courts are not as experienced working with the larger entities that favor Delaware, Johnson said. In May, Texas Gov. Greg Abbott signed legislation providing greater securities for corporate officers and adding restrictions to shareholder records requests. The bill also allows corporations to require an ownership threshold, no more than 3% in outstanding shares, before a shareholder can initiate a derivative lawsuit, typically on behalf of the company and against its own board or directors. Restrictions on who can initiate such lawsuits are not uncommon, but Texas’ implementation imposes a “far higher barrier than the norm,” Ahdieh said. Consumer advocates worry the changes endanger shareholder and investor protections by giving owners and directors more protection against lawsuits that could hold them accountable if they violate their fiduciary duty. For businesses, the changes mean potentially saving millions of dollars in shareholder lawsuit settlements and legal fees by mitigating the likelihood of those costly cases reaching court. For the states, attracting the companies means millions in business activity and revenue from regulatory filing and court case fees and taxes. Eyeing a piece of that, Oklahoma is on pace to establish its recently approved business courts in 2026. “I’m trying to take down Delaware,” said Oklahoma Gov. Kevin Stitt, a Republican. “We want to be the most business-friendly state.” Nevada wants to compete, too. It has run business dockets in Washoe and Clark counties since 2001, and it’s in the state’s interest to expand operations considering its fast-growing economy and population, said Benjamin Edwards, a University of Nevada, Las Vegas law professor who studies business and securities law. But he said it could take decades to build up a court comparable to Delaware, which has a valuable reputation for handling cases relatively quickly. Nevada’s proposed business court wouldn’t take effect until 2028 at the earliest and would require amending the state constitution, which would need approval by the 2027 legislature and voter approval in 2028 to allow for the appointment of judges.

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6/20/2025

Editorial: ASX Should Keep Its Distance from Dual-class Shares

Australian Financial Review (06/20/25)

This Australian Financial Review suggests the dubious history of dual-class share activism in this country can be traced back to Rupert Murdoch. In November 1993, Murdoch announced plans to issue “super voting” shares in News Corporation (NWSA). The new shares would carry 25 votes apiece meaning he could cement control of News Corp by increasing his family’s stake from 33% to 60% without buying a single extra share. Murdoch's attempt to upend the “one-share one-vote” principle that underpins Australian shareholder democracy was a bombshell. As was the Australian Stock Exchange's openness to the idea. However, Murdoch suffered a rare defeat. Institutional shareholders were aghast and Murdoch was forced to wait 11 years before incorporating News Corp in Delaware, a jurisdiction more open to what corporate law boffin Jennifer Hill describes as “control enhancement mechanisms,” such as staggered boards, dual-class stock, and poison pills. "That could have been the end of it: shareholders 1, billionaires 0." the editorial notes. "But proving there is no such thing as a new idea we find ourselves again debating the merits of dual-class shares with the ASX playing the role of promoter-in-chief." The catalyst this time is the Australian Securities and Investments Commission's discussion paper on the evolving dynamics between public and private markets, released in February 2025. ASIC chair Joe Longo's willingness to tackle such a multi-faceted subject is "commendable," the editorial states. "The long-term health of our public markets is of utmost importance. They ensure that our savings find their way to the businesses that need them, and are vital for national prosperity. But the need to support a vibrant sharemarket cannot come at the expense of shareholder rights. Regulation can sometimes be burdensome yet listing rules are crucial to keeping markets transparent." The ASX has been misguided in its submission to ASIC's consultation process on private markets which argues the bourse “is out of step with other major global exchanges as it does not allow dual-class shares for primary listings.” Central to the ASX's argument is there would be more listed founder-led companies if it was allowed to give those founders shares with greater voting rights. "While an absence of dual-class shares might have disincentivized Scott Farquhar and Mike Cannon-Brookes, it hasn't prevented many other entrepreneurs from joining the ranks of the ASX, for better or worse," according to the editorial. "Nor does the ASX dwell on the benefits of having governance standards that do not preference a particular type of shareholder. Dual-class shares, by definition, lead to less accountability." Underpinning this latest attempt to introduce more US-style governance to corporate Australia is a concerted lobbying effort by the law firms and investment banks that service big companies. "They are entitled to represent the interests of their clients," the editorial says. "However, they should not be abetted by the ASX or, for that matter, ASIC, which allowed many investment banking submissions to its consultation process to be confidential. The Financial Review has already called out the uncomfortable degree of fawning by ASIC over the feedback its review has received. It is important institutional shareholders find their voice in this process and oppose measures that erode legitimate shareholder rights, just as they did with Rupert Murdoch more than 30 years ago."

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