Thoughts on Board Diversity

Board diversity has been in the news for quite some time, but more recently, California became the first state to mandate that publicly traded companies headquartered in the state name women to their boards. Countries outside the U.S. have enacted similar laws. 

The new law stipulates that companies with at least five directors will need to have at least one female member by the end of this year, and two or three female members, depending on the size of the board, by 2021. According to the Wall Street Journal, the mandate in California could accelerate boardroom diversification across the country. 

But does diversity really matter? 

As noted in Forbes by professor Katherine W. Phillips from the Kellogg School of Management, diversity can result in better decisions. She explained that diversity “often comes with more cognitive processing and more exchange of information and more perceptions of conflict,” which she believes can spur new idea generation and creative solutions. 

Lisa Wardell, president and chief executive officer of Adtalem Global Education, wrote in Corporate Board Member that “board composition sends a powerful signal to current and future workforces about an organization’s commitment to equality of opportunity. It also signifies a commitment to performance, since studies show clearly the benefits of a diverse workplace.  McKinsey & Company found companies with strong gender diversity among their executives were 21 percent more likely to outperform on profitability compared with peers.”

Mike Myatt, chairman of N2Growth, recently offered a top-10 list in favor of diversity. You can read it here

Last year, Elizabeth Warren, a current U.S. senator and 2020 presidential candidate, introduced a bill called the Accountable Capitalism Act, that, among other things, would require that workers at companies generating more than $1 billion in revenue directly elect 40 percent of a company’s board of directors. This seems, to me, a bit more controversial than the new California mandate. In fact, when conducting research for this blog, I couldn’t find much in support of her proposal. Interviewed on CNBC, professor Jeffrey Miron from Harvard University said that Warren’s proposal “will create a whole set of new rules that the federal government will enforce. Those rules will not be clean, explicit or simple.  They’ll be messy, they’ll be complicated. [It will create a] huge ability for companies to evade and avoid.”

So, what are companies doing, if anything, to increase board diversity? 

A survey conducted by the National Association of Corporate Directors late last year showed that more than half of directors who responded said that their organizations have board diversity goals. Of those, 70 percent sited the need to enhance the cognitive diversity of boards, while almost half said that board diversity is a moral imperative. Barriers to diversity mentioned by 54 percent of respondents were the lack of an open board seat, while 53 percent cited finding diverse candidates that meet the board’s skill needs.

I’m as eager as the next person to see boards diversify and become more representative of current demographics and the investors they represent. But I’m also in favor of building boards with the best talent. As Myatt noted, “You’ll never hear me recommend diversity solely for the sake of checking a box, but when diversity in the boardroom offers so many benefits to the CEO (and to the entire organization) it’s nothing short of irresponsible for chief executives not to place their board composition under the microscope.”

It remains to be seen if recent efforts around board diversity will result in increased shareholder value, but it’s absolutely worth it for companies to look at their entire organizations, from top to bottom, to ensure diversity throughout its ranks. According to Wardell, “Performance comes from finding the best talent. And diversity, at its most basic level, is about increasing the pool of available talented people from which to choose.”

Laurie Berman, lberman@pondel.com

What Kermit the Frog and Microcap Companies Have in Common: It’s Not Easy…

Pity Kermit the frog when he sang, It’s Not Easy Being Green.

We all know the tune. Now try singing that tune to yourself, quietly please, but exchange Kermit’s words with: It’s not easy being microcap. Respect is so hard to come by. It’s tough to get investors to listen. And people always call you ‘too small.’

It’s not easy being a microcap company.

It was never easy being a microcap company. And It got even a little tougher in the second half 2018, when, along with the market’s tumble, BofA Merrill Lynch quietly said it would no longer trade in stocks selling for $5 or below, with market caps lower than $300 million.

We even unofficially learned that Merrill distributed talking points to its wealth managers, saying penny stocks are illiquid and can be easily manipulated for fraudulent purposes, and that the asset class is rife with companies with shaky businesses.

How sad. While such negativity and bias against microcap companies may be appropriate for some, many microcap companies have solid management teams and business models… and deserve better. Hopefully in 2019, other brokerages will not follow Merrill.

It’s always been challenging for microcap companies to command the same degree of investor interest and respect as their bigger brethren. But with help from IR professionals, there are ways not only for microcap companies to command respect, but with a little patience, to enhance value as well. Some thoughts for the new year: 

— Carefully identify and attend select microcap conferences, even though there typically are fees to pay. 

— At those conferences, weed out the investors from those who are there selling services, then cultivate relationships and communicate with them regularly. 

— Issue corporate news on a regular basis to keep the company’s name in view, and think about conducting quarterly conference calls.

— Consider producing periodic podcasts and webinars to demonstrate industry leadership, then publicize those events. 

— Judiciously use social media, paying close attention to Reg FD. 

— Professionalize corporate communications, including having a great website, just like the bigger cap companies.

— Be transparent and apply sound corporate governance practices. 

— If you can get on the road occasionally and have cultivated enough investors who will take a one-on-one meeting, do so. 

— First and foremost, although last on this list, focus on profitably growing the business.

Roger Pondel, rpondel@pondel.com

The Best Donut in Los Angeles

WARNING:  You have to read this entire blog post to know where to find the best donut in Los Angeles.

With third-quarter earnings season nearing its sunset, the year is practically over.  OK, OK, let’s not get too far ahead of ourselves.  But seriously, what does 2019 hold for capital markets?  Um, uh, well, that’s hard to say.  A few preliminary ideas from the IR observation deck:  Investors will care even more about diversity at the board level, cash preservation or lack thereof will weigh heavily on investors’ minds, and public companies will feel more pressure to perform on a quarterly basis to justify high stock valuations.

Indeed, these variables have already surfaced in 2018, particularly in California.  A California law passed in September that requires all publicly held companies based in the state to have at least one female board member by the end of 2019.  The law goes further by also requiring companies with at least five directors to have two or three female directors by 2021.

At the same time, continued volatility in the market and rising interest rates are influencing companies and investors alike to carry more cash on their balance sheet.  This trend will likely persist as the Fed partakes in gradual interest-rate increases in 2019.  That being said, investors don’t necessarily have the patience to watch a lot of cash sit idle on a balance sheet, so use it wisely.

Speaking of patience, high U.S. stock valuations will require companies to prove their pudding is still the best pudding around, and the onus will be on IR professionals to ensure that stellar financial performance is communicated effectively.

There are a number of other IR-related topics to consider for 2019, such as the continued effects of MiFID II, how artificial intelligence will influence IR, and the best place to eat a donut in Los Angeles when you’re on an NDR.  But for now, let’s just get through earnings season.

— Evan Pondel, epondel@pondel.com

Three Toots on Hitting the Big Five-0

By now, those who know us, know that PondelWilkinson turns 50 this year.

A half-century is a long time for any company to be in business. Throughout those five decades, while we have tooted the horns of our clients—we have not tooted our own. So, please allow me this rare exception to make three little toots:

First, a toot to the firm’s founder and my former boss, Mel Rifkind, 93, who kicked things off in 1968, when I was still in school and had not the foggiest idea that our kind of business even existed. Mel was a pioneer in our industry, who founded our firm on four principles that remain at our core today: apply sound thinking to meet unique client challenges; attract the best talent, regardless of position; deliver quality, responsive service; and always operate in a respectful and ethical manner.

Second, a toot to our clients and all associated with our firm for the confidence you continue to place in our organization.

And third, a deep personal thanks to our loyal, talented, hard-working staff, the best professionals in our industry, and to those who have served us in the past, of course including my late partner of 25 years, Cecilia Wilkinson. People are our only assets, our secret sauce, and our treasures.

Now for the fun stuff. What else happened in 1968, the year our firm was founded?

  • Sixty Minutes made its debut on CBS.
  • Apollo 8, the second manned spacecraft, orbited another world, the moon, for the first time.
  • The Special Olympics held its first event.
  • Our very own trade association was born, NIRI.
  • Sadly, Martin Luther King Jr., 39, and Robert Kennedy, 42, were assassinated.
  • The 911 Emergency Line was launched.
  • The Big Mac was introduced for 49-cents.
  • President Lyndon Johnson signed the Civil Rights Act.
  • A few famous people were born: Will Smith; Naomi Watts; Hugh Jackman; Marc Anthony; Ashley Judd; Molly Ringwald; Gary Coleman; Josh Brolin; Cuba Gooding Jr.; Dodgers Hideo Nomo, Frank Thomas and Mike Piazza.
  • Jimi Hendrix, the Beatles and Led Zeppelin had the best-selling albums.
  • The most popular movies were The Graduate, Funny Girl and Planet of the Apes.

Roger Pondel, rpondel@pondel.com

Celebrating 50 Years

As our firm celebrates its 50th anniversary year, we thank our clients for the trust they have placed in us, and for allowing PondelWilkinson to help enhance value, build businesses and protect reputations.

It has been our privilege to work side-by-side with stellar management teams and boards of directors of companies big and small, established and emerging, global and regional.

When our firm was founded in 1968, it was done with a business philosophy based on four simple tenets: apply sound thinking to meet unique client challenges; attract the best talent, regardless of position; deliver quality, responsive service; and always operate in a respectful and ethical manner. That philosophy has endured.

Today, we pride ourselves on long client and staff tenure, with a collaborative, professional team that is the best in our business.  We are grateful to our referral sources for their confidence in recommending us.  And we extend deep gratitude to a vast network of wonderful people with whom we work every day on behalf of our clients, from investors and analysts, to editors and reporters, lawyers, accountants, and so many others.

Technology has transformed much of what we do, but our core competencies and the scope of our services remain highly focused, grounded in relevant experience: investor relations; strategic public relations; and crisis communications.

Aside from our day-to-day client work, in 2018 alone, we have been privileged to arrange highly successful investor days; stage business/financial media events and NDRs; develop communications for several mergers and acquisitions; and craft delicate, reputation-defining messages regarding a number of highly sensitive matters.

Tooting our own horn is not generally our style. We fully believe it is our role to be the rock, the secret sauce, the foundation behind the scenes, and have our clients shine brightly, center stage. But hitting 50 is a pretty big deal, and we know you will understand and share our exuberance.

So, to everyone we know, thanks for being there for us. We look forward to being there for you for decades to come.

Making the Grade for a Reg A+ Offering

Evan Pondel wrote a story in the May/June 2018 issue of IR Update on Regulation A+ offerings and what they mean for investor relations professionals. You can download a PDF of the story here.  Following are some IR tips for companies pursuing a Reg A+ offering:

  • Ensure that you are telling a story that individual investors will understand
  • Align with experts in public relations and digital marketing
  • Millennial themes tend to generate the most interest with respect to Reg A+ offerings
  • Answer investor questions via live phone conversations, email and FAQs
  • Exercise patience when speaking with individual investors
  • Apply Reg FD and consistent communication whenever telling the story
  • Under promise and over deliver

Lying to the Media is Never OK, Never Was, Never Will Be

A recent op-ed in the Los Angeles Times, “Who is Hope Hicks, and What’d she do?” by Virginia Heffernan has struck a chord among PR pros.

Newly appointed Hicks, 29, is the third director of communications for the current White House, and the youngest in history to hold that position.

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Hope Hicks followed by White House Press Secretary Sarah Huckabee Sanders. Photo credit: Doug Mills/The New York Times

While news of her relationship with former Trump Staff Secretary Rob Porter was not the subject of Heffernan’s editorial, the author’s portal of Hick’s job as a “flack” is what’s sending shockwaves throughout the public relations industry.

For those unaware, a flack is a pejorative term sometimes used by journalists to label less-than-scrupulous public relations people, not to be confused with a “hack,” which connotes a security breach or taxi driver, and is a term occasionally used to label a “sloppy” journalist. Both have negative connotations.

According to Heffernan, Hicks was born into a “family of high-level flacks, whitewashing the unsavory practices or grave misdeeds of Texaco, the NFL, Harvey Weinstein and Donald Trump,” a reference to her family’s work as crisis communications counselors, and now as the White House communications chief, potentially deceiving the public regarding an obstruction of justice charge.

Right, wrong or indifferent, op-eds are opinion pieces. And the author of this one certainly got it wrong when she wrote, “lying to the media is traditionally called PR.”

No, it’s not. It never was and never will be.

Ironically, the PR industry at times may grapple with its own image problem. However, references to spin doctors and flacks only perpetuate a stereotype.

PR pros are essentially spokespeople, not always necessarily quoted in stories, working in the background, assisting reporters to help them do their jobs. Whether representing a brand, association or publicly traded company, PR practitioners are usually the first point of contact between reporters and clients. Building meaningful relationships with journalists based on trust is paramount to effective media relations, and to the livelihoods and careers of many public relations executives.

Although the percentage has slipped from 2016 to 2017, PR practitioners are still the third most important sources of information for journalists, behind subject experts and industry professionals, according to the 2017 Global Social Journalism Study.

One can agree that it takes a certain skill to effectively navigate any crisis communications situation, especially in a hostile media environment. Reporter deadlines coupled with mounting pressure only adds to the stress of providing timely, accurate, and credible information. But that is what makes the PR industry so specialized.

Every profession can have bad actors, or those on occasion that make mistakes, but the PR industry abides by a code of ethics, values vital to the integrity of the profession as a whole. It’s not fair, nor appropriate, to single out one instance to characterize an entire industry.

Lying to media only gets PR practitioners shunned as ineffective communicators, which often leads to loss of clients, loss of jobs, and the end to careers.

— George Medici, gmedici@pondel.com

 

Has Activism Waned?

High impact activism campaigns declined in 2017, according to a recent webcast by law firm Morgan Lewis, down to 298, the lowest level since 2013.  There were 80 proxy fights in 2017, down from a high of 133 in 2009.

Even considering these statistics, activism remains a key component of the investment community’s goal of improving shareholder value at the companies they own. A few of the reasons cited on the webcast for ongoing activist pursuits are regulators’ lack of enthusiasm to “stem the tide of shareholder activism,” substantial inflows of capital to activists, an “M&A environment that encourages activists to push companies into play,” and increased willingness by companies and their boards to engage with activists.

Targets generally have several things in common. Has your stock performed poorly?  Do you have excess cash on your balance sheet?  Has total shareholder return lagged your peers?  If so, activists might have their sights set on you.  Are your corporate governance practices lacking?  Is your CEO a woman?  According to Harvard Business Review, activists are more likely to target female CEOs (but that’s a subject for a completely different blog post).

Once a target is identified, how do activists carry out their missions? Morgan Lewis provides a playbook that includes accumulating shares in the target company, engaging with the company, applying pressure, and finally, seeking influence and control.

There are several ways companies can track activist activity to lessen the surprise if an advance is made. Increased trading volume, meeting requests from activists at investor conferences, market rumors, and SEC filings (although this list is nowhere near exhaustive), can all signify a coming fight.

More importantly, there are several ways companies can help prevent an activist attack. Conduct a vulnerability assessment, which should include looking closely at recent and historical performance (both financial and operational), understanding your current shareholder base, and reviewing board composition and bylaws, among others.  You can also consider adopting a shareholder rights plan to discourage hostile takeovers, review the company’s plans for enhancing shareholder value, and be active in the investment community rather than going underground (again, this list is far from exhaustive).  Perhaps take the advice of Canadian Lawyer and “think like an activist.”  It may be cliché, but the best defense often is a good offense.

— Laurie Berman, lberman@pondel.com

Class Action Litigation on the Rise: How Safe are Safe Harbor Statements?

History has a way of repeating itself. With 2017 statistics of all kinds starting to be compiled, one offered by the Stanford Securities Class Action Clearinghouse should make public company management teams and their boards take notice: the number of securities class-action lawsuits is on the rise … in a startling way.

 

The clearinghouse reported that the number of annoying and costly public company securities class action lawsuits increased to 413 in 2017, up from 213 in 2016, and up from an average of 190 in the years 2002 through 2015.                        

                                            

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Law firm Wilson Sonsini Goodrich & Rosati recently issued a paper highlighting the trend, which can impact companies of all sizes, from micro- to mega-cap. The three biggest reasons for the suits are material misstatements or omissions in registration statements and prospectuses for IPOs; challenges to merger and acquisition transactions, many if not most of which defense lawyers say are boilerplate in nature and meritless; and greater scrutiny by the SEC to disclosures being made by private companies.

 

Disclosures, or lack thereof, in press releases, which are totally in management’s control, often play a role in such lawsuits. While most companies are careful about including safe harbor statements in their press releases, which offer some legal protection, many companies do not use those statements properly. Often, they fail to customize those paragraphs to include the actual forward-looking statements mentioned in the press release. Worse yet, sometimes the safe harbor paragraphs are being included as boilerplate, even when there are no forward-looking statements at all.

 

Remember the term, “You’ve been Lerached?” A couple of decades ago, class action securities lawsuits were rampant, with a San Diego-based law firm, long since shuttered its doors, leading the pack in filing them. The firm’s principal ultimately went to jail for fabricating many such suits, looking for plaintiffs to buy a few shares of a given company, allegedly based on a CEO’s statement about future performance, then at the first sign of non-performance, voila, the company was “Lerached,” with the term affectionately named after lawyer Bill Lerach. Copycats followed.

 

Many of those lawsuits were legit, and they ultimately gave birth to the Private Securities Litigation Reform Act of 1995 and the safe harbor statements in press releases, followed by Reg FD in 2002. But despite the safe harbor protection, a case involving guidance issued in a press release by Quality Systems last July may signal a frightening change: The U.S. Court of Appeals for the Ninth Circuit, which governs California, reversed the district court’s dismissal of a securities fraud suit, saying various aspects of the safe harbor were “hostile in tone and application, when compared to many prior forecasting decisions.”  

 

What does all this mean?  Maybe nothing, but today more than ever, it pays to listen carefully to your SEC lawyer and to your investor relations advisor on all corporate communications matters. It also may be a good idea to place close attention to those safe harbor statements, and be sure to stay tuned as to whether those statements turn out to be not so safe as hoped.

— Roger Pondel, rpondel@pondel.com

 

 

 

Building Better Media Relationships

Media relations are an integral component to what we do at PondelWilkinson, whether a public relations or investor relations engagement.

Crises aside, generating media awareness of corporate entities, their brands, products and services, among readers, listeners and viewers is critical to the success of any communications program.

Shrinking news departments, fewer beat reporters, and an increasingly tighter news hole, however, are making it harder to get reporters’ attention.

Another caveat to these challenges is that only 36 percent of journalists prefer to get their information from PR/IR sources, press releases, and newswires, compared with 42 percent last year, according to the 2017 Global Social Journalism Studycision-global-social-journalism-study

The good news is that experts and industry contacts remain key sources of stories for U.S. journalists. For example, while a reporter may not write about a new app or the latest software version, he or she may be more inclined to interview an executive about key technology trends, such as artificial intelligence or cybersecurity.

Media relations 101, right? Maybe not. According to the same study, only 19 percent of reporters say PR professionals provide high quality content, and just 37 percent are reliable.

Learning what’s important to reporters is vital to establishing long-lasting media relationships, essentially, helping them make their jobs easier.

Follow these simple rules for building successful media contacts:

  • Do your research, learn about the reporter and his or her area of coverage.
  • Customize your pitch, conveying why it’s important to the outlet’s audience.
  • Do not blast pitches.  Just don’t do it.
  • Provide value, such as proprietary content or a unique perspective or point of view.
  • Call first, if possible, especially since reporters are constantly inundated with e-mails.
  • Be transparent to foster credibility.

There’s no easy way to building better media relationships. It takes time, effort and a good sense of news, coupled with knowing what reporters want and need.

— George Medici, gmedici@pondel.com