Rick Fleming, the SEC’s Investor Advocate, recently lambasted companies with dual-class capital structures, referring them to as a “festering wound” that, if left unchecked, could “metastasize” and threaten the “entire system of our public markets.” C’mon Rick, we won’t get anywhere if you keep pulling your punches – let people know how you really feel. . .
Notwithstanding his rhetorical flourishes, Mr. Fleming deserves credit for being willing to acknowledge that investors are a big part of the problem:
We need to acknowledge that investors themselves have engaged in their own race to the bottom when it comes to corporate accountability to shareholders. Investors, and particularly late-stage venture capital investors with deep pockets, have been willing to pay astronomical sums while ceding astonishing amounts of control to founders. This means that other investors, in order to deploy their own capital, must agree to terms that were once unthinkable, including low-vote or no-vote shares. The end result is a wave of companies with weak corporate governance.
But after making this acknowledgment, he immediately retreated to the customary fallback position – we need government intervention on dual-class stock because there’s an insurmountable collective action problem here: “Investors, acting in their own self-interest (or according to their investment mandates), may be inclined to invest in companies with weak corporate governance even though they know that these companies will ultimately harm the broader capital formation ecosystem.”
Are late round & IPO investors just too greedy & short-sighted to be trusted to get this right? Could be. I mean, they’re sure greedy. But on the other hand, it’s possible that their indifference reflects the fact that many institutional investors don’t think dual-class structures pose the kind of existential threat to the market that people like Mr. Fleming do. Who knows? Some may even believe that the jury’s still out on whether dual-class structures are a problem at all.
Oddly enough, the WeWork fiasco may undermine the argument for outside intervention in IPO capital structures. WeWork indicates that there is a point when governance problems are egregious enough to provoke IPO investors to collectively say “no thanks” – no matter how much sizzle the deal supposedly has. The fallout from the busted deal also suggests that even VC enablers are capable of learning their lesson when it comes to ceding so much control to founders.
I don’t want to push this too far – WeWork turned out to be such a mess that nobody really deserves to be patted on the back for having the sense to walk away. But if the argument for intervention on dual class structures is based on the premise that investors won’t act collectively to draw the line on governance problems, WeWork suggests that isn’t the case, and that the reasons why they don’t normally take collective action on this issue may have to do with things other than greed & short-sightedness.
-John Jenkins, TheCorporateCounsel.net November 8, 2019
