February 2, 2016
This Alert provides an update on shareholder activism activity involving domestically traded public companies with market capitalizations above $1 billion during the second half of 2015, together with a look back at shareholder activism throughout 2015. While many pundits have suggested shareholder activism peaked in 2015, shareholder activism continues to be a major factor in the marketplace, involving companies of all sizes and activists new and old. Activist funds managed approximately $122 billion as of September 30, 2015 (vs. approximately $32 billion as at December 31, 2008).[1] In 2015 as compared to 2014, we saw a significant uptick in the total number of public activist actions (94 vs. 64), involving both a higher number of companies targeted (80 vs. 59) and a higher number of activist investors (56 vs. 34).[2]
By the Numbers – 2015 Full Year Public Activism Trends
*Study covers selected activist campaigns involving domestically traded companies with equity market capitalizations of greater than $1 billion as of June 30, 2015 (for H1 2015 campaigns) or December 31, 2015 (for H2 2015 campaigns)(unless company is no longer listed).
**All data represented here is derived from the data compiled from the campaigns studied for Activism Update.
Additional statistical analyses may be found in the complete Activism Update attached below.
In this edition of Activism Update, our survey covers 44 public activist actions involving 38 different companies by 29 different activist investors during the period from July 1, 2015 to December 31, 2015. Five of those companies faced advances from at least two activist investors, including two companies that faced coordinated actions by two investors.[3] Market capitalizations of the targets ranged from just above our study’s $1 billion minimum to approximately $294 billion.
While change in board composition, including gaining representation on the board, predictably continued to be a common goal of activist investors (66%) in 2015, over half of the activist actions we reviewed in 2015 included goals related to M&A, including pushing for spin-offs and advocating both for and against sales or acquisitions (59%). High market caps continue to not deter activists from making advances, as 23% of the companies included in our 2015 surveys had market capitalizations above $20 billion. Though proxy solicitations in the second half of 2015, outside of proxy season, were less common than in the first half of the year (5% in H2 vs. 25% in H1), the second half of 2015 saw nearly as many publicly filed settlement agreements as 2015’s first six months (10 in H2 vs. 12 in H1).
Overall in 2015, proxy solicitations took place in only 19% of campaigns, and settlement agreements were publicly filed in 23% of campaigns. Within such settlement agreements, non-disparagement clauses, standstill periods and voting agreements all remained nearly ubiquitous, but expense reimbursements have grown increasingly rare (10% in H2 2015 vs. 37.5% in 2014 and H1 2015). We delve further into the data and the details in the attached copy of the Activism Update.
While proxy campaigns by activists and formal settlement agreements continue to be the exception rather than the rule, companies do appear to be taking proactive measures in anticipation of or in response to activists, including board or management changes, corporate governance reviews, stock buybacks and strategic initiatives.
In this edition of Gibson Dunn’s Activism Update, we have included a chart of the activist campaigns covered by our survey and statistical analyses of various trends for each of H2 2015 and all of 2015, as well as a survey of settlement agreement terms with breakdowns of settlement agreements publicly filed during the second half of 2015 and updated statistics on key settlement terms from 2014 through the end of 2015.
We hope you enjoy Gibson Dunn’s 2015 Year-End Activism Update. If you have any questions, please do not hesitate to reach out to a member of your Gibson Dunn team.
[2] Several companies faced actions from multiple activist investors, some of whom were acting in concert while others were acting independently vis-à-vis the target.
[3] The other three companies were subject to multiple activists acting independently.
The following Gibson Dunn lawyers assisted in preparing this client update: Barbara Becker, Richard Birns, Dennis Friedman, Eduardo Gallardo, Adam Brunk, Max Ball, Dylan Cassidy and Kevin Pham.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding the issues discussed in this publication. For further information, please contact the Gibson Dunn lawyer with whom you usually work, or any of the following authors in the firm’s New York office:
Barbara L. Becker (212.351.4062, [email protected])
Richard J. Birns(212.351.4032, [email protected])
Dennis J. Friedman (212.351.3900, [email protected])
Eduardo Gallardo (212.351.3847, [email protected])
Adam J. Brunk (212.351.3980, [email protected])
Please also feel free to contact any of the following practice group leaders and members:
Mergers and Acquisitions Group:
Jeffrey A. Chapman – Dallas (214.698.3120, [email protected])
Stephen I. Glover – Washington, D.C. (202.955.8593, [email protected])
Jonathan K. Layne – Los Angeles (310.552.8641, [email protected])
Securities Regulation and Corporate Governance Group:
Brian J. Lane – Washington, D.C. (202.887.3646, [email protected])
Ronald O. Mueller – Washington, D.C. (202.955.8671, [email protected])
James J. Moloney – Orange County, CA (949.451.4343, [email protected])
Elizabeth Ising – Washington, D.C. (202.955.8287, [email protected])
Lori Zyskowski – New York (212.351.2309, [email protected])
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