Judge Kathaleen St. J. McCormick has become a very important person in the rambunctious life of Elon Musk.
The Delaware Chancery Court judge has given Mr. Musk until Friday to close his long-promised, $44 billion deal to acquire Twitter. If he doesn’t, Judge McCormick will preside over a trial in November that could end with Mr. Musk being forced to make good on the deal he made with Twitter in April.
The 43-year-old judge is also expected to preside over another case involving Mr. Musk in November. A Tesla shareholder accused him in a lawsuit of unjustly enriching himself with his compensation package while running the electric vehicle company, which is Mr. Musk’s main source of wealth. The package, which consisted entirely of a stock grant, is now worth around $50 billion based on Tesla’s share price.
Judge McCormick is also overseeing three other shareholder lawsuits against Mr. Musk, though it is not yet clear whether those will go to trial, too.
before it represented Mr. Musk. But, he said, “the deal will either close and then she will be a hero. Or not and Musk will look really bad.”
As a young girl, Judge McCormick played first base on the softball team and managed the high school football team. She has a long-held soft spot for the book “To Kill a Mockingbird,” about a Black man in small-town Alabama who was wrongfully accused of sexual assault.
unsolicited bid worth more than $40 billion for the social network, saying he wanted to make Twitter a private company and allow people to speak more freely on the service.
She then worked as a staff attorney with the Community Legal Aid Society, where she represented the needy and victims of domestic violence. She moved to a corporate law role at the firm Young Conaway Stargatt and Taylor in 2007, a mainstay in the Delaware legal circuit.
In 2018, she was nominated by John Carney, the governor of Delaware, to serve as vice chancellor on the state’s high court, the Delaware Chancery Court. In 2021, Gov. Carney nominated Ms. McCormick to become the first woman to lead the court.
More than 1.8 million businesses are incorporated in Delaware, including more than two thirds of Fortune 500 companies — and they all look to the court for guidance. When Twitter filed its lawsuit against Mr. Musk in July forcing him to close his acquisition, its case went to Delaware, where the company, like many others, is incorporated.
Judge McCormick, who has first dibs on any proceeding that comes before the court, chose herself of among a court of seven judges to oversee one of the most high profile corporate court battles in years.
At a hearing in September, as lawyers for Mr. Musk argued to delay the trial to take into account new claims from a whistle-blower, she poked at the billionaire’s decision to skip due diligence in his race to sign the deal in April. When Mr. Musk’s lawyer argued it would have been impossible to find out about the whistle-blower before the deal, she interjected, “We’ll never know, will we?” She added that “there was no due diligence.”
wrote in a ruling.
“She evidently was not putting up with any nonsense,” said Lawrence Hamermesh, a professor of law at Delaware Law School.
In October, after weeks of presiding over bruising back and forth arguments between the two sides, Judge McCormick granted Mr. Musk’s requests to put the trial on hold to give him more time to complete his financing for the acquisition. Judge McCormick granted him until Oct. 28 — a three-week delay.
“She had one eye on the clock,” said Brian Quinn, a professor at Boston College Law School, noting the two sides did not seem ready for a trial just two weeks away. “Another eye,” Mr. Quinn said, was “on potential appeals. She is looking forward saying, ‘Well, what if I ruled against Musk, and he appealed, and his appeal is that I pushed him — I rushed him toward the trial when he wanted to close the deal.’”
Judge McCormick is well-versed in trials involving deals with buyers that tried to walk away. As an associate at the law firm Young Conaway Stargatt and Taylor, she worked on cases involving deals that went awry when the stock market crashed in 2008. That included representing the chemical company Huntsman in 2008 when the private equity firm Apollo Global Management scuttled the deal it had struck to combine the chemical company with another it owned.
That deal, and others like it, paved the way for the kinds of contracts Twitter signed with Mr. Musk. Sellers learned how to prevent buyers from trying similar escape hatches. Companies increasingly structure deals with “specific performance” clauses allowing them to force a deal to close.
to follow through with its acquisition of a cake supplier after it argued that the pandemic had materially damaged the business by curbing demand for party cake.
Kohlberg contended it could not complete the deal because its debt financing had fallen apart. Judge McCormick did not buy that argument.
If Mr. Musk does not come through with Twitter’s money by Friday, that could ding his credibility in court, legal experts say. That could matter in November, when Judge McCormick is set to preside over a separate trial involving Mr. Musk and his compensation.
The case, filed in 2018, had originally been assigned to another judge on the Delaware Chancery Court, Joseph R. Slights III, before he retired in January. Judge McCormick picked up the case on Jan. 12, the same month Mr. Musk began to buy up shares of Twitter stock that ultimately led to his planned purchase of the company.
“It’s not ideal for him,” said Ann Lipton, a professor of corporate governance at Tulane Law School, of Mr. Musk’s multiple run-ins with Judge McCormick. “She’s uniquely low drama, which is the opposite of Musk. ”
Now that Elon Musk has signaled his intent to walk away from his $44 billion offer to buy Twitter, the fate of the influential social media network will be determined by what may be an epic court battle, involving months of expensive litigation and high-stakes negotiations by elite lawyers on both sides.
The question is whether Mr. Musk will be legally compelled to stick with his agreed-upon acquisition or be allowed to back out, possibly by paying a 10-figure penalty.
Most legal experts say Twitter has the upper hand, in part because Mr. Musk attached few strings to his agreement to buy the company, and the company is determined to force the deal through.
inauthentic accounts. He also said that Mr. Musk did not believe the metrics that Twitter has publicly disclosed about how many of its users were fake.
Twitter’s board responded by saying it intended to consummate the acquisition and would sue Mr. Musk in a Delaware chancery court to force him to do so.
At the heart of the dispute are the terms of the merger agreement that Mr. Musk reached with Twitter in April. His contract with Twitter allows him to break off his deal by paying a $1 billion fee, but only under specific circumstances such as losing debt financing. The agreement also requires Twitter to provide data that Mr. Musk may require to complete the transaction.
Mr. Musk has demanded that Twitter give a detailed accounting of the spam on its platform. Throughout June, lawyers for Mr. Musk and Twitter have wrangled over how much data to share to satisfy Mr. Musk’s inquiries.
as they face advertising pressure, global economic upheaval and rising inflation. Twitter’s stock has fallen about 30 percent since the deal was announced, and trades well under the Mr. Musk’s offering price of $54.20 a share.
Legal experts said Mr. Musk’s dispute over spam could be a ploy to force Twitter back to the bargaining table in hopes of securing a lower price.
During the deal-making, no other potential buyer emerged as a white knight alternative to Mr. Musk, making his offer the best that Twitter is likely to get.
Twitter’s trump card is a “specific performance clause” that gives the company the right to sue Mr. Musk and force him to complete or pay for the deal, so long as the debt financing he has corralled remains intact. Forced acquisitions have happened before: In 2001, Tyson Foods tried to back out of an acquisition of the meatpacker IBP, pointing to IBP’s financial troubles and accounting irregularities. A Delaware court vice chancellor ruled that Tyson had to complete the acquisition,
attempted to break up its $16 billion deal to acquire Tiffany & Company, ultimately securing a discount of about $420 million.
“This stuff is a bargaining move in an economic transaction,” said Charles Elson, a recently retired professor of corporate governance at the University of Delaware. “It’s all about money.”
A lower price would benefit Mr. Musk and his financial backers, especially as Twitter faces financial headwinds. But Twitter has made clear it wants to force Mr. Musk to stick to his $44 billion offer.
The most damaging outcome for Twitter would be for the deal to collapse. Mr. Musk would need to show that Twitter materially and intentionally breached the terms of its contract, a high bar that acquirers have rarely met. Mr. Musk has claimed that Twitter is withholding information necessary for him to close the deal. He has also argued that Twitter misreported its spam figures, and the misleading statistics concealed a serious problem with Twitter’s business.
A buyer has only once successfully argued in a Delaware court that a material change in the target company’s business gives it the ability to cleanly exit the deal. That occurred in 2017 in the $3.7 billion acquisition of the pharmaceutical company Akorn by the health care company Fresenius Kabi. After Fresenius signed the agreement, Akorn’s earnings fell and it faced allegations by a whistle-blower of skirting regulatory requirements.
Even if Twitter shows that it did not violate the merger agreement, a chancellor in the Delaware court may still allow Mr. Musk to pay damages and walk away, as in the case of Apollo Global Management’s deal combining the chemical companies Huntsman and Hexion in 2008. (The lawsuits concluded in a broken deal and a $1 billion settlement.)
habit of flouting legal confines.
revealed in May that it was examining Mr. Musk’s purchases of Twitter stock and whether he properly disclosed his stake and his intentions for the social media company. In 2018, the regulator secured a $40 million settlement from Mr. Musk and Tesla over charges that his tweet falsely claiming he had secured funding to take Tesla private amounted to securities fraud.
“At the end of the day, a merger agreement is just a piece of paper. And a piece of paper can give you a lawsuit if your buyer gets cold feet,” said Ronald Barusch, a retired mergers and acquisitions lawyer who worked for Skadden Arps before it represented Mr. Musk. “A lawsuit doesn’t give you a deal. It generally gives you a protracted headache. And a damaged company.”
While those compensation totals are taken from the company’s financial filings, they are often estimates driven by the companies’ attempts to value the stock their chief executives might receive. As a result, the executives may earn less than those totals, especially if the bear market persists and their companies’ stock prices remain depressed, but they could also take home far higher amounts should the stocks recover.
Many of the highest-ranking executives in the survey received pay packages that were far larger than those of the heads of far bigger companies with much larger profits. For example, Tim Cook, chief executive of Apple, received his first equity award since 2011 last year and had total compensation of $99 million, putting him just 13th in the survey.
Despite the growth in pay, shareholders, apparently believing that it is being tied to performance, have voted in favor of most packages. Only 3 percent of “say on pay” votes got less than 50 percent support from shareholders in the year through June 3, according to an analysis of 1,444 public companies by Willis Towers Watson, a consulting firm that advises companies on executive pay programs and corporate governance matters.
For several years, public companies have had to compare their chief executive’s compensation with that of a typical employee, the result of a regulation passed by Congress that aimed to help investors assess the level of executive pay. Last year, chief executives earned 339 times more than the median pay of employees at their companies, up from 311 times in 2020, according to Equilar. The median employee wage rose 10 percent last year, to $92,349 from $83,808.
Last year’s executive pay jumped in part because corporate boards, which decide chief executive compensation, wanted to reward top officers for navigating their companies through the pandemic.
In addition, the stock market rallied in 2021, and the value of stock grants, which typically constitute the largest share of chief executive compensation, was also higher. When stock prices are rising, boards tend to say executives are doing a good job — and pay them more.
SAN FRANCISCO — Bright and early on Monday, Elon Musk sent the government a surprising new document.
In it, the world’s wealthiest man laid out his possible intentions toward Twitter, in which he has amassed a 9.2 percent stake, underlining how drastically his position had changed from a week ago.
Mr. Musk could, if he chose, buy more shares of Twitter and increase his ownership of the company, according to the document, which was filed with the Securities and Exchange Commission. He could freely express his views about Twitter on social media or other channels, the document noted. And he reserved the right to “change his plans at any time, as he deems appropriate.”
It was a promise — or perhaps it was a threat. Either way, the filing encapsulated the treacherous situation that Twitter now finds itself in. Mr. Musk, 50, Twitter’s largest shareholder and one of its highest-profile users, could very well use the social media platform against itself and even buy enough shares to take over the company.
“Twitter has always suffered more than its fair share of dysfunction,” said Jason Goldman, who was on Twitter’s founding team and served on its board of directors in the past. “But at least we weren’t being actively trolled by prospective board members using the product we created.”
Twitter’s 11-person board and agreed to not own more than 14.9 percent of the company or take it over. Then on Sunday, Twitter abruptly said all of those bets were off and that Mr. Musk would not become a director.
What exactly went on between Mr. Musk, who has more than 81 million followers on Twitter, and the company’s executives and board members is unclear. But it leaves Twitter — which has survived founder infighting, boardroom revolts and outside shareholder ire — with an activist investor unlike any other.
Mr. Musk, who also leads the electric carmaker Tesla and the rocket company SpaceX, is known for being unpredictable and outspoken, often using Twitter to criticize, insult and troll others. By no longer joining the board, he liberated himself from corporate governance rules that would have required him to act in the best interests of the company and its shareholders.
Mr. Musk leaned into that freedom after his decision was communicated to the company on Saturday morning. He proclaimed on Twitter that he was in “goblin mode” and suggested changes such as removing the “w” from the company’s name to make it more vulgar and opening its San Francisco headquarters to shelter the homeless. He later deleted some of the posts.
“This is not typical activism or, frankly, anything like activism that we’ve seen before,” said Ele Klein, co-chair of the global Shareholder Activism Group at the law firm Schulte Roth & Zabel. “Elon Musk doesn’t do things that people have seen before.”
a post on Sunday. Twitter, which published a biography of Mr. Musk as a member of its board that was still visible late Sunday, declined to comment on Monday.
Mr. Musk has long shown significant disrespect for corporate governance rules. In 2018, he faced securities fraud charges after inaccurately tweeting that he had secured funding to take Tesla private. Mr. Musk later agreed to pay a $20 million fine to the S.E.C. and step aside as Tesla chairman for three years.
He also agreed to allow Tesla to review his public statements about the company. But in 2019, the S.E.C. asked a judge to hold him in contempt for violating the settlement terms by continuing to errantly tweet about Tesla.
Inside Twitter on Monday, employees were dismayed and concerned by Mr. Musk’s antics, according to half a dozen current and former workers, who were not authorized to speak publicly. After the billionaire suggested over the weekend that Twitter convert its headquarters into a homeless shelter because “no one shows up anyway,” employees questioned how Mr. Musk would know that given that he hadn’t visited the building in some time. They also pointed out that Mr. Musk, whose net worth has been pegged at more than $270 billion, could easily afford to help San Francisco’s homeless himself.
Elliott Management accumulated a 4 percent stake and used its position to press for changes, including an ouster of Jack Dorsey as chief executive and more aggressive financial growth. Mr. Dorsey stepped down in November.
Elliott’s approach followed the typical formula for activist investors: Acquire a significant stake in a company and then press for governance and strategy changes to drive up the stock price.
“Normally an activist is very clear in their intentions,” said Rich Greenfield, an analyst at LightShed Ventures, a venture capital investment fund. But “we don’t know what Elon Musk’s true motivation is. Is this Elon having fun? Is this Elon trying to effect change? Is this Elon trying to drive the stock higher?”
Twitter is particularly susceptible to activists, analysts said, because its founders did not structure the company’s shares in a way that gave themselves more control. The founders of Google and Facebook have maintained voting power over the shares, providing them with an outsize grip over the direction of their companies.
Natasha Lamb, a managing partner at Arjuna Capital, an activist investment firm that owns some Twitter stock, said Mr. Musk was taking a more casual approach than other activist investors.
“Musk is using Twitter to have his opinions heard, but it’s not a core activity,” she said. “It appears to be what he does for fun.”
What is fun for Mr. Musk may turn out to be less so for Twitter. The relief among Twitter employees that he was no longer joining the board was short-lived, the current and former employees said, when they realized that he was no longer bound by an agreement to not buy more stock or take over the company.
Mr. Musk could continue toying with Twitter, the current and former employees said they had realized. Several added that they were afraid of what might come next.
The company also did not tell investors that its chief operating officer, Rod Copes, a Harley-Davidson veteran, left the company last year. Public companies and those in the process of listing their shares generally disclose the departures of top executives. The news was first reported by The Wall Street Journal.
Understand the Supply Chain Crisis
Ms. Mast said Mr. Copes had a “phased transition from Rivian in fall 2021, prior to the I.P.O.” and retired in December, after the offering.
Mr. Copes, 55, said in an interview that he did not leave Rivian because of concerns about his performance or because there were problems with production. He said that he had achieved key goals and that the structures were in place for Rivian’s ramp-up in production. “It was a smooth and seamless transition,” Mr. Copes said.
But corporate governance experts think Rivian ought to have disclosed his impending departure to investors during the I.P.O., given his senior role. “If they knew he was leaving, the optimal disclosure would have been to identify their C.O.O. but indicate that he was leaving,” John C. Coffee Jr., a professor at Columbia Law School, said in an email.
According to one former executive, Rivian has a poor management culture.
The executive, Laura Schwab, said she was fired last year from a high-ranking sales and marketing position after expressing concerns about what she called the “boys’ club culture” and “gender discrimination” at the company. She filed a lawsuit in state court in California accusing Rivian of violating the state law prohibiting employment discrimination and retaliation.
Ms. Schwab said she had been part of 30 vehicle introductions in prior auto industry jobs, including at Aston Martin and Jaguar Land Rover. Soon after arriving at Rivian, she said, she felt compelled to express concerns that the company was in danger of missing delivery targets.
“The production line doesn’t go from zero to thousands of cars overnight; it just doesn’t work that way,” she said.
Tesla will move its headquarters from California to Austin, Texas, where it is building a new factory, its chief executive, Elon Musk, said at the company’s annual shareholder meeting on Thursday.
The move makes good on a threat that Mr. Musk issued more than a year ago when he was frustrated by local coronavirus lockdown orders that forced Tesla to pause production at its factory in Fremont, Calif. Mr. Musk on Thursday said the company would keep that factory and expand production there.
“There’s a limit to how big you can scale in the Bay Area,” he said, adding that high housing prices there translate to long commutes for some employees. The Texas factory, which is near Austin and will manufacture Tesla’s Cybertruck, is minutes from downtown and from an airport, he said.
Mr. Musk was an outspoken early critic of pandemic restrictions, calling them “fascist” and predicting in March 2020 that there would be almost no new cases of virus infections by the end of April. In December, he said he had moved himself to Texas to be near the new factory. His other company, SpaceX, launches rockets from the state.
Hewlett Packard Enterprise said in December that it was moving to the Houston area, and Charles Schwab has moved to a suburb of Dallas and Fort Worth.
Mr. Musk’s decision will surely add fuel to a ceaseless debate between officials and executives in Texas and California about which state is a better place to do business. Gov. Greg Abbott of Texas, and his predecessors, have courted California companies to move to the state, arguing that it has lower taxes and lower housing and other costs. California has long played up the technological prowess of Silicon Valley and its universities as the reason many entrepreneurs start and build their companies there, a list that includes Tesla, Facebook, Google and Apple.
Texas has become more attractive to workers in recent years, too, with a generally lower cost of living. Austin, a thriving liberal city that is home to the University of Texas, in particular has boomed. Many technology companies, some based in California, have built huge campuses there. As a result, though, housing costs and traffic have increased significantly, leaving the city with the kinds of problems local governments in California have been dealing with for years.
Mr. Musk’s announcement is likely to take on political overtones, too.
Last month, Mr. Abbott invoked Mr. Musk in explaining why a new Texas law that greatly restricts abortion would not hurt the state economically. “Elon consistently tells me that he likes the social policies in the state of Texas,” the governor told CNBC.
he said on Twitter. “That said, I would prefer to stay out of politics.”
On Thursday evening, a Twitter post by Governor Abbott welcomed the news, saying “the Lone Star State is the land of opportunity and innovation.”
A spokeswoman for Gov. Gavin Newsom of California, Erin Mellon, did not directly comment on Tesla’s move but said in a statement that the state was “home to the biggest ideas and companies on the planet” and that California would “stand up for workers, public health and a woman’s right to choose.”
Mr. Musk revealed the company’s move after shareholders voted on a series of proposals aimed at improving Tesla’s corporate governance. According to preliminary results, investors sided with Tesla on all but two measures that it opposed: one that would force its board members to run for re-election annually, down from every three years, and another that would require the company to publish more detail about efforts to diversify its work force.
In a report last year, Tesla revealed that its U.S. leadership was 59 percent white and 83 percent male. The company’s overall U.S. work force is 79 percent male and 34 percent white.
The vote comes days after a federal jury ordered Tesla to pay $137 million to Owen Diaz, a former contractor who said he faced repeated racist harassment while working at the Fremont factory, in 2015 and 2016. Tesla faces similar accusations from dozens of others in a class-action lawsuit.
The diversity report proposal, from Calvert Research and Management, a firm that focuses on responsible investment and is owned by Morgan Stanley, requires Tesla to publish annual reports about its diversity and inclusion efforts, something many other large companies already do.
Investors also re-elected to the board Kimbal Musk, Mr. Musk’s brother, and James Murdoch, the former 21st Century Fox executive, despite a recommendation to vote against them by ISS, a firm that advises investors on shareholder votes and corporate governance.
Proposals calling for additional reporting both on Tesla’s practice of using mandatory arbitration to resolve employee disputes and on the human rights impact of how it sources materials failed, according to early results. A final tally will be announced in the coming days, the company said.
In the near future, giant index funds, those low-cost investments that have helped millions of people to build nest eggs, will gain “practical power over the majority of U.S. public companies.”
That nightmarish vision originated in a prescient 2018 paper by John Coates.
Mr. Coates was a professor of Harvard Law School when he laid out his argument — one that I share. Now, he is a policymaker. In February, he became acting director of the Securities and Exchange Commission’s division of corporation finance. Under the new reform-minded S.E.C. chairman, Gary Gensler, Mr. Coates is in a position to address the problems he has analyzed so painstakingly.
Neither Mr. Coates nor Mr. Gensler was available for an interview, but in that paper, Mr. Coates laid out his views. Index funds, which simply track the market and make no attempt to outperform it, are so effective and cheap, he said, that they have become the investment vehicle of choice for trillions of dollars of assets. Yet under current rules, it is the index fund executives, not the millions of people who invest in them, who have the power to cast proxy votes.
Those votes are the heart of a system intended to give investors a voice on crucial matters like how much the chief executive is paid or whether a company is damaging the environment.
wrote in December 2019, that lack of proxy voting capability leaves vast numbers of investors out of the equation, and gives corporations inordinate power. Consider that roughly half of all American households, comprising tens of millions of people, have a stake in the stock market. But most own equities indirectly through funds — mainly index funds.
That leaves fund managers with the decisive power over corporate governance, and the biggest fund companies have sided with management roughly 90 percent of the time.
As Mr. Coates wrote in 2018, “Control of most public companies — that is, the wealthiest organizations in the world, with more revenue than most states — will soon be concentrated in the hands of a dozen or fewer people.” The title of his paper was “The Problem of Twelve,” referring to the unelected leaders of index fund operations.
What’s worse, mutual fund companies are frequently conflicted. Many receive revenue from public traded corporations for providing financial services connected to retirement plans, yet have the responsibility of casting critical votes on how those companies are run. Scholars like Mr. Coates have worried about these conflicts for years.
study, “Uncovering Conflict of Interests: Proxy Voting Data Reveals Bias for Asset Managers to Favor Clients,” was done by the group As You Sow, which files for shareholder proposals on issues such as the environment, gender and racial diversity, and executive pay.
Today in Business
The group based its finding on an analysis of 9.6 million proxy votes by fund companies, along with Labor Department records that show how much fund companies were paid for retirement plan services.
“The big fund companies have a massive aggregation of power that comes from the investments of their shareholders,” said Andrew Behar, chief executive of As You Sow. “At the very least, the fund companies shouldn’t be allowed to vote if they have conflicts of interest.”
Such apparent conflicts are permitted under current rules, as Mr. Coates noted in his 2018 paper. There are many possible regulatory solutions, but the fundamental cure would be to take proxy voting power away from the fund companies and put it in the hands of millions of fund shareholders. That change would be especially important for investors in broad-based index funds, which mirror the stock market and cannot divest shares of individual companies.
Say you don’t want to put money into Exxon Mobil because you disagree with its approach to climate change. If you own shares in an S&P 500 index fund, you will have an indirect stake in Exxon nonetheless. And if you hold the fund in a workplace retirement account, you may be stuck. Only 3 percent of 401(k) plans include investment options based on what are known in the industry as environmental, social and governance (E.S.G.) principles, according to the research firm Morningstar, a research firm that rates funds.
Reflecting widespread concern about climate change, fund companies appear to be shifting some of their proxy votes, Morningstar said. BlackRock, headed by Larry Fink, has called for a speedy transition to a “net zero economy” and Vanguard in April adopted guidelines that may lead to more “E.S.G.-friendly” votes, said Jackie Cook, director of investment stewardship research at Morningstar.
INDEX, has taken a small step that could have revolutionary implications: This year, it has begun asking shareholders how they want to vote.
Index Proxy Polling,” an easy way for shareholders to convey their preferences on proxy votes for S&P 500 companies. The aim is to demonstrate how shareholders in an index fund could express their opinions.
So far, only about 100 investors have participated, said Mike Willis, the fund manager, and current S.E.C. regulations require him to make the final voting decisions on behalf of the fund. But he said he hoped the S.E.C. would eventually allow him “to move to real shareholder democracy and go to pass-through voting, in which the shareholders say what they want and we just cast the vote for them.”
I commend Mr. Willis for his innovative approach, but note that this is not a typical index fund. It is an equal-weighted version of the S&P 500: It gives equal emphasis to big and small companies, so it may underperform the market when giants like Apple boom, and do better than the standard index when smaller companies excel. Its expense ratio of 0.25 percent is reasonable but not as low as some of the giant funds.
If experiments like this catch on, they could help to move the markets closer to something resembling shareholder democracy. But legislators and regulators — people like Mr. Coates and Mr. Gensler — will need to weigh in, too, if we are to avert a future in which the voices of investors are muffled and giant corporations are dominated by even more powerful index funds.
When Jeffrey Epstein gave The Times columnist James Stewart a tour of his apartment a few years ago, he boasted of his expansive Rolodex of billionaires — and the dirt he had on them. A year and a half after the financier’s death by suicide in a New York jail, the fallout for those in the registered sex offender’s orbit, and increasingly those a step or two removed from it, continues to spread.
For example, the latest management reshuffle at Apollo, as we reported yesterday, can be linked back to Epstein. Tracing all the resignations and reshuffles directly and indirectly tied to the scandal will take a while (we’re working on it), but here’s a tally of some so far:
The Apollo co-founder Leon Black said in January that he would resign as C.E.O. but stay on as chairman, after an internal inquiry found he had paid $158 million to Epstein for tax advice. He unexpectedly quit both posts in March, and later stepped down as chairman of the Museum of Modern Art. Josh Harris, a fellow co-founder who had unsuccessfully pushed Black to quit immediately, said yesterday that he was stepping back from Apollo after failing to become the next C.E.O.; Marc Rowan, Apollo’s third co-founder and Black’s pick as successor, now leads the firm.
When the details of meetings between Epstein and Bill Gates burst into public view in late 2019, the billionaire’s wife, Melinda French Gates, hired divorce lawyers. The couple’s split, announced this month, could upend their numerous investments and philanthropic ventures
Les Wexner announced last February that he would step down as C.E.O. of the Victoria’s Secret parent company L Brands, under pressure from multiple internal investigations about his close ties to Epstein. Earlier this year, he and his wife, Abigail Wexner, said they would not stand for re-election to the L Brands board this month. (The company is now in the process of spinning off Victoria’s Secret.) Mr. Wexner was Epstein’s biggest early client and, a Times investigation found, the original source of the financier’s wealth.
Prince Andrew of Britain gave up his public duties last November, days after a disastrous interview with the BBC centered on his relationship with Epstein. At least 47 charities and nonprofits of which he was a patron have since cut ties to the prince.
Joi Ito resigned as the director of the M.I.T. Media Lab, a prominent research group, in 2019 and as member of several corporate boards (including The New York Times Co.), after acknowledging that he had received $1.7 million in investments from Epstein.
Alexander Acosta resigned as Donald Trump’s labor secretary in 2019, amid criticism of his handling of a 2008 sex crimes case against Epstein when he was a federal prosecutor in Miami.
HERE’S WHAT’S HAPPENING
Morgan Stanley sets up its C.E.O. succession competition. The Wall Street firm gave new roles to four top executives, marking them as candidates to take over from James Gorman: Ted Pick and Andy Saperstein were named co-presidents; Jonathan Pruzan was named C.O.O.; and Dan Simkowitz was named co-head of strategy with Pick.
The U.S. endorses a global minimum tax of at least 15 percent. The proposal, which was lower than some had expected, is closely tied to the Biden administration’s plans to raise the corporate tax rate. Global coordination would discourage multinationals from shifting to tax havens overseas.
Treasury officials said they could capture at least $700 billion in additional revenue. That would involve hiring 5,000 new I.R.S. agents, imposing new rules on reporting crypto transactions and other measures.
U.S. customs officials block a Uniqlo shipment over Chinese forced labor concerns. Agents at the Port of Los Angeles acted under an order prohibiting imports of cotton items produced in the Xinjiang region.
U.S. steel prices are soaring. After years of job losses and mill closures, American steel producers have enjoyed a reversal of fortune: Nucor, for instance, is the year’s top-performing stock in the S&P 500. Credit goes to industry consolidation, a recovering economy and Trump-era tariffs. Unsurprisingly, steel consumers aren’t thrilled about it.
Oprah Winfrey to Blackstone, made its stock market debut yesterday, ending its first trading session with a valuation of about $13 billion. DealBook spoke with Oatly’s C.E.O., Toni Petersson, about the I.P.O. and what’s next for the company.
resignation letter offering both praise of SoftBank’s chief, Masa Son — and unusually pointed criticism of the company’s corporate governance.
Going out vs. staying in, charted
It’s been a while since we checked in on an alternative indicator of pandemic economic activity: the share price ratio of Clorox to Dave & Buster’s.
Wait, what? Nick Mazing, the director of research at the data provider Sentieo, came up with that metric to gauge the openness of the economy. The higher Clorox’s share price rises relative to Dave & Buster’s, the more people appear to be staying home and disinfecting everything than going out to crowded bars. By this measure, conditions have nearly returned to prepandemic levels — indeed, Dave & Buster’s recently lifted its sales forecast, as nearly all of its beer-and-arcade bars have reopened.
packed concert schedule, selling tickets to people who may have already binge-watched all of “Below Deck.” The second, however, suggests that people aren’t as eager to get back to huffing and puffing at the gym as they are content to exercise at home. As restrictions lift and people feel safer in crowds, drinking and dancing appear to be higher priorities.
new book, “Noise: A Flaw in Human Judgment,” the Princeton psychology professor and Nobel laureate Daniel Kahneman, along with co-authors Olivier Sibony and Cass Sunstein, argue that these inconsistencies have enormous and avoidable consequences. Kahneman spoke to DealBook about how to hone judgment and reduce noise.
DealBook: What is “noise” in this context?
Kahneman: It’s unwanted and unpredictable variability in judgments about the same situations. Some decisions and solutions are better than others and there are situations where everyone should be aiming at the same target.
Can you give some examples?
A basic example is the criminal justice system, which is essentially a machine for producing sentences for people convicted of crimes. The punishments should not be too different for the same crime yet sentencing turns out to depend on the judge and their mood and characteristics. Similarly, doctors looking at the same X-ray should not be reaching completely different conclusions.
How do individuals or institutions detect this noise?
You detect noise in a set of measurements and can run an experiment. Present underwriters with the same policy to evaluate and see what they say. You don’t want a price so high that you don’t get the business or one so low that it represents a risk. Noise costs institutions. One underwriter’s decision about one policy will not tell you about variability. But many underwriters’ decisions about the same cases will reveal noise.
An arm of Goldman Sachs has raised $3 billion from clients to invest in later-stage start-ups. (WSJ)
SPACs have raised $100 billion this year through May 19, a record, but new fund listings dropped sharply last month. (Insider)
Politics and policy
President Biden issued an executive order directing government agencies to expand efforts to analyze and mitigate the economic risks tied to climate change. (Axios)
“As Paycheck Protection Program Runs Dry, Desperation Grows” (NYT)
CNN said the prime-time host Chris Cuomo inappropriately advised his brother, Gov. Andrew Cuomo of New York, on how to respond to sexual harassment allegations. (NYT)
Paul Romer was one of the tech industry’s favorite economists; now he is criticizing Silicon Valley giants for being too big. (NYT)
Amazon was recently pushed to ban prominent electronics accessory makers by the F.T.C. over fake-review schemes. (Recode)
Best of the rest
Bill Gates and Warren Buffett got more than 200 billionaires to pledge half their wealth to charity. Some are falling short, but still getting massive tax breaks. (Insider)
FIFA, the global soccer governing body, secretly considered supporting the European Super League, before reconsidering amid public outcry about the now-failed competition. (NYT)
Five questions to ask before you panic about inflation. (NYT)
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