A New Era For Activist Defense: Going Beyond the Relics of the 80s
Source: https://corpgov.law.harvard.edu/2020/05/01/a-new-era-for-activist-defense-going-beyond-the-relics-of-the-80s/
After years of tremendous economic growth, COVID-19 has unleashed unprecedented market volatility and extreme value dislocations for U.S. public companies. Senior management and directors are facing existential business model, strategic, and human resource challenges that are generational in scope. Some law firms and other corporate advisors have responded to the pandemic with a focus on implementing shareholder rights plans or “poison pills” and other traditional defensive measures as a principal corporate response to the pandemic, [1] which has caught the eye of governance experts and media pundits. [2]
Updating a “shelf” poison pill may be prudent depending on circumstances, but traditional defensive prescriptions alone are insufficient as a strategy [3] and may distract senior management and directors from addressing the real issues arising from the COVID-19 crisis. A comprehensive corporate strategy addressing the company-specific business model, industry, human resources, stakeholders, and other enterprise risk is far superior to one that places undue emphasis on poison pills. The best poison pill, in our view, is one that gathers dust on the shelf because a company’s proactive corporate strategy makes the pill unnecessary.
