New SEC chairmwoman was activist backer

Activist hedge fund managers may like Mary Schapiro.

The soon-to-be Securities and Exchange Commission chairwoman was a solid shareholder activist during her stint as a commissioner at the agency. So much so that governance fund manager Ralph Whitworth said "She has been a stanch and long-time supporter of shareholder rights."

RiskMetrics Inc. Director Patrick McGurn said: "You have to put [Schapiro] on the progressive side of the scale when it came to initiatives for shareholders.”

President-Elect Barack Obama chose Schapiro in December to run the controversial and embattled agency, which is likely to be restructured in response to the financial crisis.

Between 1988 and 1994, Schapiro was an independent commissioner at the SEC. During that period, the agency was headed by GOP chairmen David Ruder and Richard Breeden, and later by Democratic commissioner Arthur Levitt.

In my book I talk about how that period was critical for shareholder empowerment. Breeden, who now runs an activist hedge fund, pushed through a number of investor-empowering rules with Schapiro's critical backing. Schapiro's support for shareholder initiatives at the time indicates that she may be supportive of some major pro-investor proposals as chairwoman.

In the early 1990s, Schapiro voted to have the SEC adopt a number of rules expanding the amount of communications investors could have with each other. It also freed up communications between investors and reporters. The rules allowed investors to vote against a management proposal or director candidates as long as they didn't try to nominate their own director candidates.

She also endorsed a provision introduced by Breeden known as the short-slate rule that allowed investors to split their vote between management-nominated directors and candidates put up by dissident activist investors.

"More than a decade later, this measure was critical in establishing the world of activist hedge funds and other insurgent investors," McGurn said. "She [Schapiro] was critical to the effort to keep that controversial provision in the final shareholder communications reform package."

While at the SEC, she also backed a measure that expanded the amount of disclosure executives were required to provide about their compensation plans. Those disclosure rules were expanded in July 2006.

Shifting SEC

The Securities and Exchange Commission will be a key regulator as Washington continues to restructure itself in response to the expanding financial crisis.

SEC Chairman Christopher Cox has called for a combination of the agency and the Commodities Futures Trading Commission, a key part of Paulson’s blueprint for regulatory reform.

Whether the agencies do combine, it won’t be under Cox’s watch. Arthur Levitt, SEC chairman during 1993 to 2001, is a potential pick for chairman. FINRA CEO Mary Schapiro is another potential choice because of her extensive experience working at both the CFTC and SEC. “To combine both these agencies you need someone with experience at both places,” said one securities attorney.

Another possible SEC chair pick is John Olson, a partner at Gibson Dunn LLP and former head of the American Bar Association’s business law section’s committee on Corporate Governance. Ex. SEC commissioners Harvey Goldschmid, Roel Campos and Annette Nazareth, are all possibilities. It would be easier for Obama to anoint an existing commissioner to the chair position. Elisse Walter, who is on the commission, could fit the bill. Lower level but still very important division chiefs at the SEC are on their way out too. John White, who heads the SEC’s corporate finance division, is expected to step down, leaving the hefty task of figuring out how to create a new derivatives disclosure regime to his successor. Stanley Keller, a partner at Edwards Angell Palmer & Dodge LLP could replace White. -- Ron Orol

Congressional Shifts on Capitol Hill

When Democrats lost seats in the 2002 midterm congressional election, then House Minority Leader Richard Gephardt quietly decided not to run for re-election for that position.

With Republicans losing House seats in both 2006 and 2008, expect GOP members to push for changes to their leadership. That could mean the ouster of House Minority Leader John Boehner, R-Ohio, or GOP Whip Roy Blunt, R-Mo. Possible replacement candidates include Reps. Paul Ryan, 38, R-Wisc. and Eric Cantor, 45, R-Va., both lawmakers that led a high profile ultimately unsuccessful effort to topple Treasury Secretary Henry Paulson’s $700 billion government purchase plan. According to Darryl Nirenberg, deputy chair in Patton Boggs public policy department, Cantor and Ryan may see the losses in their party as an opportunity to step up. The Republican study committee, a conservative caucus within the Republican party, now has a strengthened position for GOP lawmakers, Nirenberg contends. Previous members Tom Delay and Richard Cheney have gone on to strong positions within the Republican party. Opposition to Paulson’s package emerged from this committee.

One glimmer of positive news for Republicans was the re-election of Senate Minority Leader Mitch McConnell, R-Ky. McConnell understands the intricacies of the parliamentary rules on Capitol Hill and legislative observers expect that he is best positioned to protect GOP interests in the Senate. His ouster would likely have meant the installation of the less experienced Sen. Jon Kyl, R-Arizona, to the position.

On the Democratic side, look for Sen. Christopher Dodd, D-Conn., to remain chairman of the Senate Banking Committee, a panel that will be at the center of restructuring on Capitol Hill. Less likely is for Dodd to decide to be chair of the prestigious Senate Foreign Relations Committee, where vice president-elect Joe Biden is leaving a vacancy. Sen. Daniel Inouye, D-Hawaii, may take over the Senate Appropriations Committee (after the ouster of Sen. Robert Byrd, D-Va.) leaving the position of Senate Commerce Committee chairman to John Rockefeller, D- WV. All this may leave Sen. Chuck Schumer, D-NY., as chair of the prestigious and powerful Senate Rules Committee.

As far as Obama’s administration. Expect quick movement. According to the Washington Post, Rahm Emanuel is deciding whether he wants to be President-Elect Barack Obama’s chief of staff. Rahm may choose to stay on in Congress where he could one day replace House Speaker Nancy Pelosi.

Once Obama’s chief of staff is chosen, expect his White House staff and cabinet officials to be chosen quickly, in the next couple weeks.

Key cabinet official appointments should be made before Thanksgiving. The choice of Treasury Secretary, arguable the most important cabinet level job, should go to either New York Federal Reserve Bank President Timothy Geithner or New Jersey Gov. Jon Corzine, at least according to Stan Collender, managing director at Qorvis Communications in Washington. Larry Summers, a former Treasury Secretary during the Clinton Administration, is also in the running. -- Ron Orol

Sun Times Under More Pressure

Already under pressure from activist investors K Capital Management LLC of Boston, Sun-Times Media Group Inc., which announced in February it was considering a sale of assets or a privatization, is now facing a second activist investor.


On Wednesday, Davidson Kempner Advisers Inc. announced an activist tack at the owner of the Chicago Sun-Times, the latest news company to be targeted by activist hedge funds. K Capital, the Sun-Times' largest shareholder with a 9.7% stake, has been a vocal advocate for a sale.

Davidson Kempner, a 5.9% Sun-Times holder, on Wednesday evening said in a Securities and Exchange Commission filing it has had and will continue to have discussions with "third parties and other shareholders and management regarding [Sun-Times], its prospects and potential means for enhancing shareholder value. In these discussions, [Davidson Kempner] may suggest or take a position with respect to future plans for the company, including, without limitation, potential changes in the business, strategy, operations, board composition, management or capital structure of the Issuer as a means of enhancing shareholder value."

The filing doesn't mention whether the two firms are working together, but Davidson Kempner's filing makes it clear that it certainly would be open to talking to a number of investors. - Ron Orol

Steel Partners closer to Goal at Point Blank

Activist turned private equity investor Warren Lichtenstein is one step closer to his goal of buying body armor maker Point Blank Solutions Inc. or having it consider strategic options, including a sale.

The insurgent, who manages the New York-based activist fund Steel Partners, took five of seven board seats on the $153 million stock market capitalization company in a proxy contest on Tuesday. The Pompano Beach, Fla.-based company's market capitalization is roughly half its size compared to a year ago, and its former Chief Executive has been arrested on charges of fraud.

"We continue to believe that Point Blank should not remain a standalone company competing on uneven terms against much larger competitors in a weakening market," Lichtenstein said in a statement. "Steel Partners is committed to maximizing stockholder value by exploring all strategic alternatives, including possible sale of all or a portion of the Company on the most favorable terms available to Point Blank stockholders."

Steel Partners, which has a 9.6% Point Blank stake, offered last year to buy the company for $281 million. The company rejected the bid.

Steel Partners, traditionally known for pushing companies to auction themselves or find other means of improving shareholder value, is no stranger to bidding or buying companies. The activist fund, together with Newcastle Partners, another hybrid activist and buyout shop manager, acquired Fox & Hound Restaurant Group in 2006. The two funds later acquired Champps Entertainment Inc. In addition to restaurant chains, Steel Partners focuses a large chunk of its activist efforts on defense industry companies. In 2004, the fund unsuccessfully bid to buy aerospace engineering systems manufacturer GenCorp. Inc.

Naked Short Selling Would Live On

One day after the Securities and Exchange Commission ended its pilot project to clamp down on naked short selling, at least one academic says any decision to extend the plan to the broader market would have some unintended consequences.


Columbia Law School professor John Coffee says he believes that if the SEC chooses to extend the temporary naked short-selling rule to the entire market, it would have the effect of driving short sellers to migrate their investments to single stock futures, the options market and cash settled equity securities, all strategies that could also drive a company stock down. The last option, also known as total return swaps, don't involve real shares but are agreements between investors and bank derivatives dealers where one party pays the other based on the performance of the underlying stock price.

"I'm not saying it's a complete substitution but people who want to avoid preborrowing stock might be able to achieve these things through these other means," Coffee says.

The agency in July set up emergency restrictions on short sales in the shares of 19 financial institutions including mortgage giants Fannie Mae and Freddie Mac through Tuesday. The emergency restrictions required short sellers in these institutions to either arrange formally to borrow shares, "preborrow." Previously, it was enough if the broker could determine that it had a reasonable basis to deliver the securities when an investor sought to borrow shares for a short sale.

It's not clear what the SEC will do after it collects all the data from this effort, but Coffee adds that he believes those investors seeking to engage in naked short selling, the practice of selling a stock short without first borrowing the shares or ensuring that the shares can be borrowed, will use these other mechanisms that fulfill the same functions. Coffee does add that even with short sellers finding these other means, he expects broad restrictions similar to those set forth in the emergency order to have some impact on discouraging the naked short- selling practice.

"It would succeed at putting some sand in the gears," Coffee said. - Ron Orol

What Happened to Fiduciary Duty?, asks TCI

ailroad company CSX Corp. still refuses to seat two of four dissident director nominees, partly because the company hopes an appeals court ruling will disqualify a block of shares voted by the activist dissident investor Children's Investment Fund Management (UK) LLP.

But now the independent inspector of elections has put out its report detailing that four of five TCI nominees won election to the board at the company's June 25 annual meeting.

If the appeals court upholds the District Court finding that TCI violated securities laws, it could disqualify many votes TCI cast in favor of the dissident slate by "sterilizing" or disqualify the portion of shares TCI owned while it was allegedly in violation of the disclosure rules. In total, that means 6.4% of TCI's stake could be ruled ineligible.

That would mean dissident directors Christopher Hohn, TCI founder, and Timothy T. O'Toole would have lost the election. According to the inspector of elections, Hohn received 130,506,157 votes, edging out incumbent director Frank Royal, who only got 129,715,745, a margin of about 0.3%. Hohn would definitely not have won had 6.4% of his TCI stake been removed. O'Toole also won with less than 6.4%.

The court isn't likely to rule until September, with oral Arguments scheduled for Aug. 25.

CSX is betting that if the court decides to sterilize those TCI shares it will be easier to keep Hohn and O'Toole off if they are never seated in the first place than if they have to remove them from their seats retroactively.

But until the court acts, what happens to fiduciary duty to shareholders? Hohn and O'Toole could end up losing up to 20% of their term as directors. Will the two dissidents receive an extra few months at the end of their 12 month term if the court doesn't decide to disqualify the votes? Also, what about the two directors Hohn and O'Toole are set to replace? Are Royal and William Richardson off the board yet? - Ron Orol