Dubbing the studio “Liar Gate,” Icahn pointed to Lionsgate’s March 13 agreement to pay $7.5 million and admit wrongdoing to settle Securities and Exchange Commission claims that the studio failed to disclose all information about its 2010 efforts to stop Icahn. Lionsgate has not commented about the penalty and settlement.
“Liar Gate drives home the lesson that if stockholders want the best from and for the companies they own, they cannot just sit back and let self-interested corporate bureaucrats make decisions based on the counsel of advisors who have few incentives to look out for stockholders and cannot always be relied upon to bring proper ‘adult supervision’ to the board room,” Icahn said.
The SEC action represented the first time in nearly three decades that the SEC had filed an enforcement action against a target of a hostile takeover under its tender offer rules. The agency said Lionsgate management engaged in transactions that allowed board member Mark Rachesky, via his MHR Fund Management, to boost his stake through newly issued company shares — effectively blocking Icahn’s takeover bid.
The SEC took issue with the fact that Lionsgate did not disclose that the $100 million debt-to-equity swap reduced Icahn’s stake to 33.5% from 37.3%. Icahn filed suit but settled in August 2011 as part of cashing out his stake for $7 a share, or $310 million.
“The ‘Liar Gate’ matter is notable not only for the direct findings against management and the board but also for the criticism that has been leveled against Wachtell, Lipton, Rosen & Katz, the company’s legal advisor (and, not surprisingly, the same law firm that has been tapped to represent the not so ‘world-class’ team at eBay),” Icahn said.
The post made the case that companies are not well-served if shareholders are passive.
“The massive compensation and self-dealing that has occurred at many public companies, even in the face of poor results and labor force reductions, highlights the risks inherent in the passive stockholder model,” Icahn said. “To put it simply, in business, as in all things, you cannot let the fox guard the henhouse.”
In the case of eBay, Icahn has been seeking a spinoff of the company’s PayPal service, nominated two reps to the board and blasted its board and management.
“I call on all institutional investors to step up and face the challenges before us,” Icahn said Wednesday. “Do not give eBay’s current management and board the unfettered power to squander the critical first-mover advantage that PayPal has just as, in my opinion, they squandered the value of Skype.”