Whenever I talk about Elon Musk and corporate governance, an objection is raised to the effect of, “Isn’t Musk sui generis?  Can we really take any lessons from him?”

It’s a fair question, but if Musk is sui generis, there is no meaning in any of this, and that’s no fun at all.  So, for the purposes of this post, I’m putting it aside.

Take One:  What a supreme failure of the SEC

I’m sorry, I have to start here.  Sometime in the middle of the night (I was asleep), Elon Musk tweeted an extremely informal spreadsheet screencapture of the purported shareholder vote, and for the next several hours – including during actual trading – no one knew if he was telling the truth.  I spoke to reporters, which is a thing I do now whenever Musk is in the news (i.e., on days that end in “y”), and they were simply not sure whether to take the tweet seriously.  Initial headlines read “Elon Musk says” rather than “The vote is.”

It is unacceptable that the CEO of an S&P 500 company could publicly release extremely material information and have the entire world spend multiple hours wondering if he was just kidding.

I can only assume the tweet was not, in fact, reviewed by the Twitter Sitter, even though Musk lost on all his attempts to challenge his settlement.

If the SEC cannot ensure the basic accuracy of something as simple as a report of the results of a shareholder vote on one of the most widely traded, publicly watched companies in history, what are we even doing here?  The phrase “You had one job” takes on new meaning.

Take Two: What is the value of fiduciary litigation?

The debate has long raged over whether fiduciary litigation brings any actual benefit to shareholders.  You can ask about that in specific cases – are these all nuisance suits that only benefit the attorneys? – and you can also ask more broadly, i.e., maybe having the system of fiduciary litigation in general keeps directors on the straight and narrow, and ultimately contributes to shareholder wealth systemically.

Notwithstanding Tesla’s assertions to the contrary, I think it’s fair to say most spectators associated a move to Texas with a reduction in fiduciary litigation, or at least, successful litigation.  Partly, this is just a mood, i.e., the expectation that Texas judges presiding over cases involving Texas employer Elon Musk, under the watchful eye of Musk’s good friend Greg Abbott, are more likely to rule in Tesla’s favor.  But it’s also potentially built into Texas law, which may be interpreted as requiring plaintiffs to clear a higher bar for showing a lack of board independence.

So what does it mean, that shareholders – especially institutional shareholders – voted to reincorporate?

Well, one story is, they agree that fiduciary litigation is rent-seeking, contrary to shareholder interests, and does nothing more than distract boards from doing their actual jobs.  In this story, Tesla’s shareholders voted to limit the nuisances that threatened the ability of Elon Musk to run the company as he sees fit – in a manner that would ultimately maximize the benefits to Tesla shareholders.  In other words, fiduciary litigation is too powerful, in that it inhibits too much managerial flexibility by imposing inappropriate one-size-fits-all standards.

But another story is that shareholders were, in fact, coerced, in the sense that they believed defying Musk’s wishes would cause him to violate his fiduciary duties to Tesla by redirecting its resources to his private companies.  But if that’s the story, you have to also believe that shareholders thought there was no remedy for that kind of breach.  After all, even though there are new complaints against Musk alleging that he misappropriated Tesla resources and opportunities, at the end of the day, no court can literally stand over him 24/7 and make him develop AI.  So under that view, fiduciary litigation is too weak to protect shareholder interests.

Either way, though, the conclusion might be that fiduciary litigation – be it too strong or too weak – doesn’t add value to shareholders.

(A third story, incidentally, is that shareholders are okay with Musk not maximizing Tesla’s value, if he’s saving humanity or taking us to Mars or whatever, and so they’ll willingly hand over Tesla assets for that project.  Which is actually really interesting and not entirely without evidentiary support, but would seem to come more from retail than institutions.)

Take Three: What does this mean for the proposed DGCL amendments?

I’ve previously blogged about proposed amendments to the DGCL (prior posts here, here, here, here, and here). None of those amendments are directly relevant to Musk (except in the very abstract way that they would authorize a shareholder agreement to substitute for the kind of dual-class recapitalization currently prohibited by listing rules).  But there is a theme here, and it’s that Delaware has become too strict in terms of limiting the flexibility of insiders, managers, and large investors.  And the Texas move, especially if it heralds additional flight, could be read as confirming that perception.  If so, that might weigh in favor of the proposed amendments – or at least, tempering at the Delaware Supreme Court level.

But a corollary to that is – and now we’re really veering off Musk and into the DGCL proposals – what is the larger political picture?  Delaware may claim that its law is shaped by balancing the interests of shareholders and managers, but it’s possible that shareholders in fact have very little interest or influence (here’s a paper discussing the lack of institutional investor bargaining power re: private equity; and in general, the fact that investors were so willing to invest in Chinese VIEs despite increasing warnings by the SEC regarding the lack of shareholder protections tells me something, anyway, about how much attention investors actually pay to governance rights ex ante).   

If that’s true, why does Delaware provide any protections for shareholders at all?  Well, one answer is – Delaware operates in competition with the SEC, which provides mandatory investor protection.  And so, Delaware strategically protects investors just enough to keep the SEC and Congress off its turf.  And corporate managers understand that dynamic, and even tolerate it, in tacit collusion with Delaware, to ward off federal intervention.

But what does the world look like when federal intervention is off the table, perhaps because we have a court that will strike down any move the SEC makes?   Maybe it looks very much like this world, where Delaware leaps at the chance to eliminate investor voice.

Take Four: How easy is it to escape Delaware’s protections via reincorporation?

This is obviously the main issue in TripAdvisor, but I can’t help considering the issue in light of the woes of – yes, Paramount.  Because according to news reports, a big stumbling block in Shari Redstone’s attempt to sell her stake is that (1) she wants to receive more consideration than the public shareholders but (2) she fears the liability would follow.  That liability comes from Delaware law.  Take Nevada, for instance.  It seems Nevada would give a free pass to controller transactions, absent evidence of intentional misconduct, fraud, or knowing violation of law, and it does not seem as though a simple conflict of interest rises to that level.

So, can we imagine a world where Shari Redstone uses her controlling stake to force a reincorporation to Nevada, and then sells the company on her terms?  I can imagine it, sure, and the lesson here is how difficult it is for states to maintain different standards so long as managers can choose the law to govern their affairs.

Of course, if you truly believe that the market will police all of this, then, maybe you think that, in the future, shareholders of Delaware companies will demand charter protections against reincorporation without disinterested shareholder approval.

Or, maybe, contra what I said in Take Three, you believe investors will pay less for their stakes if they do not have governance rights.  Which is exactly what this paper demonstrates regarding firms backed by PE that go public with shareholder agreements in place.  Except the dollar figures still appear to be so high that PE firms are willing to make that sacrifice in order to retain the private benefits of control.  I’d argue – as I said previously – that since the financial power associated with control translates into political power, we have an explanation for why PE firms would make that trade.  And that really is about much more than the market reaching an appropriate discount for appropriation risk; that is a problem for the Rest of Us.

Take Five: Superstar CEOs

There’s been a lot of talk about them but, in Tesla’s case, there’s a really specific issue on the table.  What if, Tesla is just a car company?  What if, Tesla’s current market valuation is entirely untethered from its actual potential – under the direction of Musk or anyone else?  What if the only reason for its stratospheric valuation is because Musk has a PT Barnum like ability to convince people of a mythical future that will never come to pass?

I am a lawyer, I’m not a financial analyst, and I’m not going to weigh in on whether that’s correct. I am safe in saying, however, that there’s certainly a contingent of relatively informed people who feel that way (though certainly not everyone).

Indulge me, for a moment, in a thought experiment.  If the critics are right, that puts Tesla’s investors in a bind.  Elon Musk may be mismanaging the company, in the sense of diverting resources to his private firms and stocking the board with his bestest buddies and doing whatever he’s doing while high, but there is no solution via traditional channels.  Any activist move to oust him and install better governance will still result in a drop in stock price to reflect Tesla’s true potential.  Current shareholders are benefitting, in other words, from misplaced confidence.  (Cf James Spindler on why existing shareholders prefer securities fraud).  That means, they cannot risk instilling any kind of discipline at all.

If that’s true, then we are back to where we started.  Because if there’s one other thing the securities laws are intended to do, beyond ensure the basic accuracy of public material information, it’s to keep stock prices at least relatively tethered to corporate fundamental value, so as to ensure efficient capital allocation.  And for whatever reason (Elon Musk personally, the difficulty with policing projections of future performance, the irrationality of retail, take your pick), that process has entirely failed in the case of Tesla.  And we are now witnessing the downstream effects.