Opinion piece originally published on Bloomberg
https://www.washingtonpost.com/business/disney-peltz-show-shouldnt-cast-the-board-as-villain/2023/01/17/c1b20360-9670-11ed-a173-61e055ec24ef_story.html
Disney-Peltz Show Shouldn’t Cast the Board as Villain
Analysis by Beth Kowitt | Bloomberg
January 17, 2023 at 10:00 a.m. EST
Just as Walt Disney Co. announced last week that Chairman Susan Arnold would step off the board after a 15-year run as a director, activist investor Nelson Peltz made public his all-out war against the company.
Queue the palace intrigue. Was Arnold leaving as a concession to Peltz? Or because she wants no part in the nasty proxy battle that’s likely brewing? It’s possible that a bit of both is true. But the overriding factor, and the one Disney has publicly pointed to, is much more boring: term limits. Disney’s board tenure policy caps director service at 15 years, and Arnold’s time simply was up.
Term limits might be dull, but they’re a good thing. They keep directors from becoming complacent or overly aligned with the CEO. They force a refresh that injects new ways of thinking into the boardroom. That matters when 48% of directors say they want to see at least one of their fellow board members replaced, according to PricewaterhouseCoopers LLP’s most recent annual corporate directors survey. But term limits are also exceedingly rare; Disney is among only 7% of companies in the S&P 500 that have them for non-executive directors.
This picture of Disney as responsible corporate citizen, dutifully implementing its board tenure policy, is in stark contrast to the one painted by Peltz’s Trian Partners LP. The firm’s proxy filings argue that Disney has generally underperformed, spent too much on its 21st Century Fox acquisition, has struggled to make its streaming service profitable, and overpaid its executives. (Peltz makes a point to note that he was told a virtual board meeting wouldn’t happen before
Jan. 6 because CEO Bob Iger had plans to sail his yacht off the coast of New Zealand).
These critiques are not particularly new, revelatory, or controversial. Trian, however, doesn’t offer up many ideas for how the company can make things better — other than to add Peltz to the board, of course. Many of Disney’s problems can be chalked up to its corporate governance practices, most notably its botched CEO succession, Peltz says. He seems to think he can do it better. This position often makes the filings read more like a case for Nelson Peltz as a Disney director than a case against the company itself.
Succession ranks high on the list of a board’s most important jobs, and Disney put a target on its back after botching it up so visibly. For years, the company’s directors let Iger set — and then adjust — his own timeline for retirement. They let him hand pick his successor, Bob Chapek. They allowed him to stay on as chairman for two years, which ended up undermining his successor. And when the board decided Chapek needed to go, it brought Iger back after deciding he was the only person who could possibly run the company.
Admittedly, it’s not a great look for a board. And it bolsters Peltz’s argument that the company is lacking in the governance department. But policies like term limits signal that Disney is not only doing something right when it comes to board operations but even ahead of the curve on some practices that other companies should emulate.
Thanks in part to term limits, several Disney directors weren’t even involved in a number of the flawed business decisions Trian criticizes most harshly. Seven of the 12 directors hadn’t yet joined the board when Disney announced it was buying Fox in 2017, and three of the company’s current board members have joined since Iger stepped down as CEO in 2020. Today it’s a much younger board, both in terms of age and tenure, and a more diverse one, too — better reflective of the kinds of customers it wants to serve.
Excluding Arnold, who will step off after Disney’s annual meeting, the company’s current average independent director tenure is 4.1 years versus 7.8 for what executive search firm Spencer Stuart reports is the average for S&P 500 boards; the average age for an independent Disney director is 58 versus 63 for the S&P 500. Other than Arnold and Iger, who rejoined the board when he rebooted as CEO, the board roster is completely new since 2015. You can argue the pros and cons of this kind of a turnover — a much-needed refresh versus an inexperienced cohort — but, either way, it does take some of the wind out of Peltz’s attempted portrayal of the board as a deeply entrenched group beholden to Iger.
Last time Iger was on the board as CEO, he was also chairman — a title he held onto until 2021 when Arnold took over. This time, the company has separated the positions, with Nike’s Executive Chairman Mark Parker stepping into the role as Arnold departs. Splitting the chairman and CEO jobs is increasingly acknowledged as good governance and is the direction most companies are moving toward: In its most recent board survey, Spencer Stuart found that 57% of S&P 500 boards split their CEO and chairman roles compared to 43% a decade prior. Parker also has experience replacing long-tenured CEOs synonymous with their company’s brand. He was once one of them. In 2020, he stepped down as Nike CEO after a nearly 15-year run.
One of Parker’s first acts as Disney chairman will be running a newly formed succession planning committee with a mandate of finding a replacement for Iger, who has signed on for a two-year term. Most companies don’t have a dedicated committee designed to address succession, instead tackling the issue as a full board or as part of their compensation or governance and nominating committees. But having a group focused solely on succession seems obvious for Disney when it has struggled so miserably with its chief executive handoff before. It’s probably not a bad idea for most companies to consider a similar structure, as we’ve recently watched both a number of failed CEO transitions as well as companies scrambling when a CEO departs with no ready replacement in the wings.
Disney has managed to engineer a rare do-over of its CEO handoff — now with new and improved corporate governance practices. It may lead to a smoother transition, but this time around there’s really no room for error. Peltz, who is girding for a fight, will make sure of it.