Activist investors won 131 board seats last year. While 2017 won’t be quite as active as that, public companies have already spent $43 billion on proxy contests.
“Clearly, activism has come to the mainstream, it’s a completely acceptable strategy,” said Bob Marese, an adviser on mergers, acquisitions and proxy contests at consulting firm MacKenzie Partners.
He and some peers talked through the state of activism and offered some advice during a panel at the 2017 Faegre Baker Daniels M&A Conference.
Jim Golden of Joel Frank, a strategic communications firm known for working with activist-embattled companies, said boards should “become your own activist” and find weak spots, solutions and communicate plans in white papers and elsewhere.
“So when some 27-year-old hedge fund guy comes and says, ‘Have you thought about levering up?’ you can say, ‘Yeah, but what do you think about this idea,’” said Golden.
Steve Kennedy, a partner at Faegre Baker Daniels, said early plans are key because being public means activists will come.
“Having that preemptive look at what you’re going to say is really critical,” said Kennedy. “If you try to make any changes after you have an activist in your stock, you’re going to have them and the board looking at your decisions.”
Jamil Ali had some advice from the activist side. The Lazard director was among the advisers tapped by Marcato for the tumultuous (and successful) Buffalo Wild Wings contest. He said there are four things to do in a proxy battle: Be honest; communicate readily; realize it will be costly; and remember these contests can “quickly move from an attack on strategy to personal attacks.”
But it’s not all bad. As activism matures, firms aren’t just nominating hedge fund whiz kids with machetes anymore. As seen in the BWW fight, even the company wanted a few of Marcato’s board nominees.