MEREDITH FOSTER – Special Meetings and Consent Solicitations: How the Written-Consent Right Uniquely Empowers Shareholders -Yale Law Review

To summarize, the rights to act by written consent and to call a special meeting are very similar in what they allow shareholders to do. This fact may seem
to support the commonly held view that shareholders that already have the right
to call a special meeting do not also need the right to act by written consent. But
looking only at what the two rights allow shareholders to do—and not at what
restrictions boards can place on those rights—is a mistake.
Contrary to popular opinion, the right to act by written consent is more empowering to shareholders than the right to call a special meeting, because boards
cannot unilaterally impose the same type of restrictions on the latter as they can
on the former. A review of the corporate governance documents of large Delaware companies demonstrates the significance of this distinction. Boards have,
with little oversight or fanfare, significantly restricted shareholders’ exercise of
their special-meeting right. However, companies have generally not imposed
similar restrictions on shareholders’ exercise of their written-consent right.
179. See supra notes 86-91 and accompanying text.
180. Lipton et al., supra note 63.
special meetings and consent solicitations
Thus, even though the two rights can be used to accomplish similar actions, the
written-consent right is used far more frequently than the special-meeting right
to conduct fights for board control.

Shareholder Action by Written Consent

This article seems to think action by written consent is mostly useful.

“Shareholder action by written consent refers to corporate shareholders’ right to act by written consent instead of a meeting. This type of consent avoids some of the negative characteristics of shareholder meetings. A consent resolution, formally called a Shareholders’ Consent to Action Without Meeting, is a written document that details and validates the procedures taken by shareholders within a corporation without requiring that a meeting occur between shareholders and/or directors.

In general, written shareholder consents require the same number of approval votes as would be required if the shareholder meeting actually occurred. Keep in mind that it’s not necessary for a meeting to actually be in person these days either, as telephone and video meetings are common and may be included as acceptable methods of holding meetings according to a corporation’s bylaws.  . . . ”

Source: Shareholder Action by Written Consent

Action by Written Consent: A New Focus for Shareholder Activism

“. . .  Under Delaware law, shareholder action may be taken by written consent in lieu of a meeting unless the certificate of incorporation either expressly prohibits action by consent or effectively prohibits it by requiring that such action be taken only by unanimous consent. [2] Written consent proposals seek to have the board propose a charter amendment to permit action by written consent. Action by written consent may be used to accomplish, among other acts, the wholesale amendment of bylaws and, absent specific impediments in the certificate of incorporation, removal of directors without cause and filling of board vacancies, all without waiting for an annual or special meeting. As a result, except in limited instances such as where the charter prevents the removal of directors without cause, the right to act by written consent may be used to replace up to the entire board of directors. Among other things, the ability to gain control of the board can undermine takeover defenses, such as a shareholder rights plan, and thereby potentially prevent the board from using a rights plan or other defensive mechanism to explore alternative ways of realizing value for shareholders. The vulnerabilities that arise from the existence of the right to act by written consent, even if not actually exploited, arguably give hostile bidders and insurgent shareholders leverage whenever they are negotiating with incumbent boards.  . . .”

This article doesn’t make me an authority on this complicated subject.

Source: Action by Written Consent: A New Focus for Shareholder Activism

David Swensen, Who Revolutionized Endowment Investing, Dies at 67 – The New York Times

David Swensen, a money manager who gave up a lucrative Wall Street career to oversee Yale University’s endowment and proceeded to revolutionize endowment investing, in the process making Yale’s the best-performing fund in the country over a 20-year period, died on Wednesday in New Haven, Conn. He was 67.

His wife, Meghan McMahon, said the cause was kidney cancer, which he had since 2012. He died at Yale New Haven Hospital.

Mr. Swensen’s innovation at Yale was to shift endowment investing from a formulaic menu of stocks and bonds to a portfolio that included hedge funds and even timberlands. When he took over at Yale in 1985, the endowment was worth $1.3 billion. Since then it has grown to $31.2 billion, passing those at both Princeton and the University of Texas and trailing only Harvard University’s.

Mr. Swensen was particularly proud of how the growing endowment had helped the university contribute to financial aid. . . . “

‘Self-confident yet selfless’: Yale’s David Swensen dies at 67 | YaleNews

“. . . . No fewer than 15 former members of Swensen’s team have gone on to lead investment offices at other institutions, including, at various times, Princeton, MIT, Stanford, the University of Pennsylvania, the Rockefeller Foundation, Wesleyan University, and Bowdoin College. Some two-thirds of them are women. Smith College recently announced that it had hired Swensen protégé Lisa Howie ’00 B.S., ’08 M.B.A. as its first chief investment officer.

Astonishingly, of the 15 top-ranked endowments based on performance over the past 10 years, six are managed by Yale Investments Office alumni,” said Takahashi, who served as senior director in the Yale Investments Office for 33 years. (He is now the founder and executive director of the Carbon Containment Lab at Yale School of the Environment.)

Teaching was important to Swensen, both in the classroom and in the Investments Office. On Monday, he and Takahashi taught the last spring semester session of their celebrated seminar course, “Investment Analysis.” Swensen, an elected fellow of the American Academy of Arts & Sciences, led discussion of a new case study.

After co-teaching the course for more than two decades, Takahashi said, the pair could “finish each other’s sentences.”

In 2014, when the university presented Swensen with an honorary degree, Polak added two extra words to the formal tribute: “and teacher.”

He was so happy about that,” Polak said. “For years to come he’d remind me that we added those two words.”

Former Vassar College President Catharine B. “Cappy” Hill ’85 Ph.D., the senior trustee of the Yale Board of Trustees, called Swensen “a consummate teacher and university citizen.”

All those who have passed through the investment office, engaged with him through the investment committee of the university, or taken one of his courses have benefited from his enthusiasm for educating and mentoring others. His obvious love for and commitment to Yale contributed to the university in many ways, and will be remembered and valued by all those who had the good fortune to know him.”

Through two books Swensen wrote — “Pioneering Portfolio Management: An Unconventional Approach to Institutional Investment” and “Unconventional Success: A Fundamental Approach to Personal Investment” — he also helped the broader investment community learn his way of thinking.

Source: ‘Self-confident yet selfless’: Yale’s David Swensen dies at 67 | YaleNews

Lithium Mining Projects May Not Be Green Friendly – The New York Times

Ivan Penn and 

“Atop a long-dormant volcano in northern Nevada, workers are preparing to start blasting and digging out a giant pit that will serve as the first new large-scale lithium mine in the United States in more than a decade — a new domestic supply of an essential ingredient in electric car batteries and renewable energy.

The mine, constructed on leased federal lands, could help address the near total reliance by the United States on foreign sources of lithium.

But the project, known as Lithium Americas, has drawn protests from members of a Native American tribe, ranchers and environmental groups because it is expected to use billions of gallons of precious ground water, potentially contaminating some of it for 300 years, while leaving behind a giant mound of waste.

“Blowing up a mountain isn’t green, no matter how much marketing spin people put on it,” said Max Wilbert, who has been living in a tent on the proposed mine site while two lawsuits seeking to block the project wend their way through federal courts.  . . . “

Melinda Gates Interview: Coronavirus, Masks and Inequality – The New York Times

“As the valedictorian of her Dallas high school, Melinda Gates delivered a graduation speech that included a quote attributed to Ralph Waldo Emerson. “To know even one life has breathed easier because you have lived,” she told her classmates, “this is to have succeeded.”

Decades later and billions of dollars wealthier, Ms. Gates says the quote is still ringing in her ears. “That’s been my definition of success since high school,” she said. “So if I have an extra dollar, or a thousand dollars, or a million dollars, or in my case, which is absurd, a billion dollars to plow back into making the world better for other people, that’s what I’m going to do.” “

David Lindsay:

Back in 1996, I ran Derric Computer, and was helping a customer with his home office. He complained that he had to buy and use Microsoft Windows, because he despised Bill Gates, who was the richest man in the country, and had never given a cent to charity. We verbaly pissed on Bill Gates together, and it was a bonding experience. However, Bill has rehabilitated himself. We had no idea how strong a philanthopist he would become, in partnership with his wife, Melinda French Gates. Their story is exemplary, and I’m saddened to hear of their divorce. I am confident that their partnership in philanthropy will continue unabated.

Binyamin Appelbaum | A New Deal, This Time for Everyone – The New York Times

Mr. Appelbaum is a member of the editorial board.

“The New Deal was mostly for men. The great public works projects that endure in public memory employed men. Labor protections enacted between 1934 and 1939 excluded domestic workers, restaurant workers, retail clerks and others in jobs with large female work forces. New safety nets for the unemployed, for the disabled and for older Americans were similarly tailored for men, who were supposed to provide for everyone else.

Equally telling are the kinds of help the government did not provide. Unlike other industrial nations that unfurled safety nets in the same decades, America’s new laws did not require employers to offer paid family leave or paid sick leave. There was no attempt to provide or subsidize child care. At the time, relatively few mothers worked outside the home, and policymakers did not think they should. One irony in the efforts of later generations to force welfare recipients to find jobs is that the program, launched as part of the New Deal, was intended to make it possible for single mothers to stay home.

’Tis the season for comparing the new administration’s plans to the New Deal, but in one important respect, President Biden is seeking to chart a different course.

To paraphrase Lin-Manuel Miranda, Mr. Biden is proposing to include women in the sequel.

A big chunk of the money in the administration’s twin spending bills, the American Jobs Plan and the American Families Plan, is aimed at helping people better balance paid work and family obligations. The Biden administration has emphasized that child care subsidies will benefit children and that senior care subsidies will benefit seniors. It has emphasized that freeing caregivers to take paying jobs will benefit the economy. In other words, it has described these policies in terms of their benefits to others. What has not been emphasized sufficiently is the benefit to women, who bear most of the responsibility for providing care.  . . . “

Paul Krugman | Biden and the Future of the Family – The New York Times

Opinion Columnist

“Like many progressives, I like the Biden administration’s plan to invest in infrastructure, but really love its plans to invest more in people. There’s a good case for doing more to improve physical assets like roads, water supplies and broadband networks. There’s an overwhelming case for doing more to help families with children.

To Republican politicians, however, the opposite is true. G.O.P. opposition to President Biden’s infrastructure plans has felt low-energy, mainly involving word games about the meaning of “infrastructure” and tired repetition of old slogans about big government and job-killing tax hikes. Attacks on the family plan have, though, been truly venomous; Republicans seem really upset about proposals to spend more on child care and education.

Which is not to say that the arguments they’ve been making are honest.

How do we know that we should be spending more on families? There is, it turns out, a lot of evidence that there are big returns to helping children and their parents — stronger evidence, if truth be told, than there is for high returns to improved physical infrastructure.

For example, researchers have looked into the long-term effects of the food stamp program, which was rolled out gradually across the country in the 1960s and 1970s. Children who had early access to food stamps, the Washington Center for Equitable Growth concluded, “grew up to be better educated and have healthier, longer and more productive lives.” Researchers have found similar effects for children whose families received access to the earned-income tax credit and Medicaid.

Bret Stephens | Biden’s Plan Promises Permanent Decline – The New York Times

Opinion Columnist

“Years ago, Alexis Tsipras, the party leader of Greece’s Coalition of the Radical Left, surprised me with a question. “Here in the United States,” the soon-to-be prime minister asked me over breakfast in New York, “why do you not have this phenomenon of passing money under the table?”

The subject was health care. Greece has a public health care system that, in theory, guarantees its citizens access to necessary medical care.

Practice, however, is another matter. Patients in Greek public hospitals, Tsipras explained, would first have to slip a doctor “an envelope with a certain amount of money” before they could expect to get treatment. The government, he added, underpaid its doctors and then looked the other way as they topped up their income with bribes.

Take a close look at any country or locality in which the government offers allegedly free or highly subsidized goods and you’ll usually discover that there’s a catch.

France’s subsidized day care is, by all accounts, fantastic for working parents who get their children into it. Except there’s a perpetual shortage of slots. In Sweden, a raft of laws protects tenants from excessively high rent. Except wait times for apartments can be as long as 20 years. In Britain, the National Health Service is a source of pride. Except that, even before the pandemic, one in six patients faced wait times of more than 18 weeks for routine treatment.  . . . “

David Lindsay Jr.

David Lindsay Jr.Hamden, CT | NYT comment:

I feel a bit sorry for Bret Stephens and Ross Douthat, and other modern, young, conservatives. They deserve pitty for their bubbleheadedness. Or hardheadedness? Stephen’s attacks on France, especially for its high unemployment, contrasts with Paul Kruman last week, who reported that France has more woman working than the US does. One reason, is that they have state supported childcare. Their suicide rate is lower, and their life expectancy is higher. et cetera. I humbly suspect that the elephant in the room is that the real conservatives are more like myself, ardent climate hawks, deeply concernced about the environment. We recognize that income inequality has hurt the poor and gutted out the middle class. These young men are so bright and articulate, you suspect that they might accidentally wake up, and realize that the woke conservatives are now the right wing of the Democratic party. The Republicans turning to Trumpism, and no nothingism, white supremacy and anti-science and anti-democracy positions, left us little choice.