New Article: “The Golden Leash and the Fiduciary Duty of Loyalty”

I’m delighted to share a new article by yours truly on corporate governance and shareholder activism, The Golden Leash and the Fiduciary Duty of Loyalty, that will be published in the UCLA Law Review.

The “golden leash” is a controversial form of third-party compensation under which activist hedge funds supplement the salaries of directors they nominate to the board, in exchange for increasing the value of the company. A director compensated pursuant to such an arrangement stands to earn millions of dollars rather than the $250,000 paid to a typical director of a large public company, though the more richly compensated director usually works much harder and takes a lot of public abuse.

I offer a qualified defense of the golden leash, situating it in the context of other, more mainstream structures that depend on a more relaxed, porous conception of the fiduciary duty of loyalty than is commonly applied in the context of the golden leash. I also offer thoughts on how a properly disclosed golden leash can not only work for shareholders but improve procedural corporate governance more broadly.

The abstract follows. I welcome any comments on the draft.

The Golden Leash and the Fiduciary Duty of Loyalty

Abstract

Activist hedge funds have begun experimenting with a novel practice in corporate governance: offering their candidates for the board of directors millions of dollars in bonus pay through a device known as a “golden leash.” Such arrangements, which are highly controversial, award directors for accomplishing activist objectives. An emerging body of work views the golden leash through the same polarized lens as activism itself: either the leash locks directors in to a self-serving, “short-termist” agenda, or it creates incentives for them to be better advocates for shareholders. This binary framing obscures some of the golden leash’s most promising qualities.

Though associated with shareholder activists, the golden leash belongs to a larger class of well-established, mainstream legal structures that reduce agency costs and increase expertise at individual firms by, paradoxically, tying directors to multiple firms. These structures include corporate governance innovations in two other areas of the capital markets, the venture capital ecosystem and the practice of corporate directors sharing information with outside entities. Like the golden leash, both of these models create overlapping obligations for directors. Yet these arrangements are welcomed by scholars, courts, and firms on the grounds that they improve enterprise value and corporate governance by quietly blending loyalties, notwithstanding the fact that they also make conflicts of interest more likely.

The golden leash thus follows in a coherent, if unheralded, tradition of structures that forge ultraclose bonds between directors and outside shareholders. This Article argues that the risks posed by this blending of duties should be discounted by the availability of mechanisms to manage the resulting conflicts and by advantages conferred in capital formation and governance. Properly designed and disclosed, the golden leash can promote not only superior returns but consensus-building, dialogue, and other values important to sound procedural corporate governance.

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