Copyright © 1996, LENS Inc. All Rights Reserved
Comments to webmaster@lens-inc.com
2 Edward Regan, "U.S. Competitiveness: Financial Markets and Corporate Governance", Synopsis of Remarks Delivered at the Conference on Global Views on Performance Measurement, Financial Executives Research Fund, Dallas, December 16, 1992, pp. 4-5.
3 M.A. Eisenberg, "The Structure of Corporation Law", Columbia Law Review , 89, 1989, pp. 1461, 1474, 1480.
4 Martin Lipton, "A Corporate Governance Syllogism", speech delivered at the Current Investment Issues Seminar: Securing Tomorrow while Investing Today, sponsored by The California Public Employees' Retirement System and California State Teachers' Retirement System, San Francisco, September 23, 1992.
5 Lynne L. Dallas, "Two Models of Corporate Governance: Beyond Berle and Means", University of Michigan Journal of Law Reform , 22, Fall 1988, pp. 82, 87.
6 "Principles of Corporate Governance", American Law Institute, Final Draft approved, June 1992.
7 Id ., 19, 59.
8 John Pound, "The Will to Act: Concurring Views and Rejoinder," Final Report of the Subcouncil on Corporate Governance and Financial Markets , Competitiveness Policy Council, December 7, 1992, pp. 3-5.
9 Thomas A. Stewart, "The King is Dead", Fortune , January 14, 1993.
10 Report of the Committee on the Financial Aspects of Corporate Governance -- The Code of Best Practice , Gee and Co. Ltd., December 1992.
11 Bernard S. Black, "Institutional Investors and Corporate Governance: the Case for Institutional Voice" , Journal of Applied Corporate Finance , Autumn 1992.
12 Michael T. Jacobs, Short-term America: The Causes and Cures of Our Business Myopia , Harvard Business School Press, 1991.
13 Michael E. Porter, Capital Choices: Changing the Way America Invests in Industry , Research Report to the Council on Competitiveness and Co-Sponsored by the Harvard Business School, June 1992.
14 Oxford Analytica, Ltd., Board Directors and Corporate Governance - Trends in the G7 Countries over the Next Ten Years , Study Prepared for Russell Reynolds Associates, Price Waterhouse, Goldman Sachs International, and Gibson, Dunn & Crutcher, September 1992.
15 Lilli Gordon and John Pound, "Active Investing in the US Equity Market: Past Performance and Future Prospects", Report prepared for the California Public Employees' Retirement System, Gordon Group Inc., December 2, 1992, p. 2.
16 Steven L. Nesbitt, Rewards From Corporate Governance , Wilshire Associates, February 12, 1992.
17 Dallas, supra, p. 95, 96.
18 See Appendix A, Department of Labor's letter on ERISA fiduciary standards, February 23, 1988 ("the Avon letter"), and Appendix B, Cathy Tost, "Corporate Activism by Pension Managers Is Urged by Labor Agency's Robert Monks", Wall Street Journal , June 21, 1984.
19 Regan, supra, p. 2, 3.
20 Dale Hanson's speech to the Harvard Business School on December 3, 1992.
21 Susan Pulliam, "New York's Pension Fund Targets A&P," Wall Street Journal , February 9, 1993.
22 Paul Sweeney, "How CalPERS Can Ruin a CEO's Day", Global Finance , February 1993.
23 Susan Pulliam, "Paramount is Targeted by Pension Fund Due to Weak Stock Pricer, Executive Pay", Wall Street Journal , March 4, 1993.
24 After extensive debate in the Senate, the Conference Committee simply inserted a provision (Section 8438 (g)) in the bill as enacted, flatly prohibiting the involvement by any federal employee, trustee or official in the voting of shares of portfolio company. As one of the original Trustees with the responsibility for administration of this program, I was perplexed by the position of being made responsible on the one hand and in being prohibited authority to carry out this responsibility on the other. We simply assumed that we had the power to delegate voting authority to others, which we did.
25 Leslie Wayne, "Assuaging Investor Discontent," New York Times , February 3, 1993.
26 John Pound, "The Rise of the Political Model of Corporate Governance and Corporate Control", working paper prepared for the Subcouncil of on Corporate Governance and Financial Markets of the Competitiveness Policy Council, September 1992, p. 19.
27 Judith H. Dobrzynski, "Relationship Investing: A New Shareholder is Emerging -- Patient and Involved", Business Week , March 15, 1993.
28 Daniel Fischel and John H. Langbein, "ERISA's Fundamental Contradiction: The Exclusive Benefit Rule", University of Chicago Law Review , 55(4), Fall 1988. Also, House of Representatives Bill H.R.2664, sponsored by Rep. Visclosky and others, "A Bill to amend Title I of the Employee Retirement Income Security Act of 1974 to provide for joint trusteeship of single employer pension plans."
29 "Getting Rid of the Boss", The Economist , February 6, 1993.
30 Millstein, Supra, Footnote 77.
31 The Report of the Twentieth Century Fund Task Force on Market Speculation and Corporate Governance , Twentieth Century Fund Press, 1992, p. 18.
32 Id., p. 19. It then goes on to point out that it would be even more valuable to have "financial and corporate intermediaries, as well as sophisticated institutional investors, take substantial ownership positions in enterprises and use these positions to work directly with managers to promote long-run competitiveness."
33 Abram Chayes, in his introduction to John P. Davis' Corporations , Capricorn Books, New York, 1961, p. xix.
34 Carl Kaysen, "The Corporation: How Much Power? What Scope?" in Edward S. Mason, Ed., The Corporation in Modern Society , Harvard University Press, Boston, 1959, pp. 85, 105.
35 This assumes, of course, a certain freedom from the same obstacles of collective choice, "rational ignorance," and commercial reprisals that limit any form or level of shareholder activism.
36 I withdrew the proposal at Kodak, and a similar one at Sears, following successful negotiations with the CEOs of both companies.
37 Theodore Baums, "Corporate Governance in Germany: The Role of the Banks," The American Journal of Comparative Law , 40, 1992, pp. 503, 509, 510.
38 Michael C. Jensen, "Eclipse of the Public Corporation," Harvard Business Review , September-October 1989, p. 61.
39 George W. Dent, Jr., "Toward Unifying Ownership and Control in the Public Corporation," Wisconsin Law Review , 1989, Number 5, p. 881.
40 Id ., p. 908.
41 Robert A.G. Monks, "The Oxymoron in the Boardroom," New York Times , May 5, 1991.
42 William Taylor, "Can Big Owners Make a Difference," Harvard Business Review , September-October 1990, p. 70.
43 Possibly, this example is of questionable relevancy in light of the subsequent conviction for anti-trust violation arising out of the relationship between GM and DuPont.
44 Jensen, supra.
45 There are a number of other considerations which may make it impossible for someone like CalPERS CEO Dale Hanson to serve on a board like General Motors. One problem which may be insoluble is that Mr. DuPont had a large stake in General Motors while Mr. Hanson and CalPERS have a large stake in General Motors, Chrysler, Ford, and probably Nissan and Toyota as well, in addition to every other publicly held company in the United States. Another problem is Mr. Hanson's role as a public servant, which would restrict his ability to give General Motors the time it would deserve and to accept the fees he would deserve. Finally, Mr. Hanson and his counterparts would be unlikely to be able to give up their ability to trade the stock in order to serve on the board.
46 Oxford Analytica, supra, p. 146. (Emphasis added)
47 Millstein, supra, p. 27.
48 Stewart, supra.
49 Manning, "The Shareholder Appraisal Remedy: An Essay for Frank Coker", Yale Law Journal , 72, 1962, pp. 223, 245.