Definition, Function, and Key Role of an Activist Investor

Activist Investor: What Is It?

To alter the management of a publicly traded company, an activist investor, usually a specialized hedge fund, purchases a sizable minority stake in the business.

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The objectives of an activist investor can range from something as simple as offering management advice to something as ambitious as pressuring the company to sell, restructure, or divest, or changing the board of directors.

Activist investors rarely purchase full or majority stakes in businesses, in contrast to private equity firms that purchase and restructure businesses in order to profit from their subsequent sale. Instead, they appeal to other shareholders and business insiders through both public and private communications. In the event that these attempts are unsuccessful, an activist investor may attempt to compel the company to comply with their demands by running a proxy election to choose new directors.

A Comprehensive Overview of Activist Investors

Investors who advocate for better working conditions for their contractors’ foreign workers or who support a dissident board slate elected to combat climate change are sometimes referred to as shareholder activists.

However, maximizing shareholder value is the sole goal of many activist investor campaigns, and the majority of these are carried out by hedge funds that specialize in the particular combination of public pressure, covert lobbying, and business acumen needed.

In order to offset the significant expense of such campaigns, activist hedge funds, as opposed to public pension funds and mutual funds, which occasionally also participate in activism, may hold highly concentrated stakes and augment them with additional leverage from derivatives like stock options. Activist hedge funds usually purchase a stake in an underperforming company just prior to demanding change, with the intention of profiting from the ensuing turnaround and price appreciation. This is in contrast to institutional investors, who occasionally resort to activism after owning a disappointing investment for years.

Activist hedge funds are also more inclined to employ combative strategies than institutional investors, ranging from proxy battles to remove incumbent directors to poison-pen letters to management and disparaging public reports.

How Proactive Investors Present Their Argument

A Schedule 13D form, which must be submitted to the U.S. Securities and Exchange Commission (SEC) within ten calendar days of obtaining five percent or more of a company’s voting class shares, is frequently used by investor activists to announce their campaigns.

Instead, qualified institutional investors and passive investors—those who are not attempting to buy out or exert control over the business—may submit a streamlined Schedule 13G with fewer disclosure thresholds and requirements. Among other things, Schedule 13D filers are required to reveal why they purchased the stake and any plans they may have for the business, including capitalization, dividends, asset sales, mergers and acquisitions, and other policies.

The activist investor has a fantastic opportunity to make their case for change at the targeted company public through the initial 13D filing. The filing also limits the activist’s ability to change their plans for the company and their stake in it while keeping it hidden from the public. According to current SEC regulations, any modifications to the information provided on a Schedule 13D must be reported “promptly” in an amended filing.

Activist investors have the option to comment on a company’s response to their proposals through amended Schedule 13D filings. For instance, after funds connected to Carl Icahn disclosed a nearly 10% stake in the video streaming company, Netflix, Inc. (NFLX) adopted a poison pill. The funds filed an amended disclosure, referring to the poison pill as “an example of poor corporate governance.” Activist investors can also privately persuade institutional investors to support them, send out press releases arguing their case to other shareholders, or write scathing letters to incumbent managers.

Shareholder Activism’s Future

In May 2022, Carl Icahn bemoaned the notion that “activism is dying,” in contrast to the renowned investor’s historically unrestrained style. The proposed 2022 amendments to the Schedule 13D disclosure requirements have raised concerns among some, with Elliott Investment Management publicly claiming that the new regulations “will virtually shut down activism.”

The SEC had suggested in February 2022 that the original Schedule 13 filing deadline be shortened from 10 calendar days to 5 days, with amendments being due the day after a material change instead of “promptly” as is currently the case. If approved, the proposal would essentially require 13D filers to list derivatives holdings (like options) that provide a financial stake in the business without the rights of shareholders that come with owning all of the company’s stock. The proposed rules would eliminate the need for investors to agree to act in concert and have the SEC designate them as a single group for Schedule 13D reporting purposes, which is possibly more contentious. Additionally, regulations have been put forth to make it more difficult for activist shareholders to stifle a business’s pro-ESG or environmental initiatives.

Gary Gensler, the chair of the SEC, contended that the proposed stricter regulations would resolve “an information asymmetry” between other shareholders and activist investors. The proposed rules, according to critics, would make activism unprofitable by making it more expensive and difficult for activist investors to acquire sizable stakes and by preventing shareholders from communicating with one another.