May 7, 2014

Boards should decide takeovers

Yvan Allaire | IGOPP

In an opinion piece published in the Financial Post on May 6th, (Shareholders should decide takeovers), Mr. Philip Anisman responds to my piece published in the Financial Post of April 30th (Canada needs a new takeover regime).

Mr. Anisman recycles the key arguments of “market discipline” and boards having to dedicate themselves to the singular goal of “maximizing shareholder value” when assessing an unsolicited offer to buy the company.

Of course, he has to acknowledge that “the fiduciary standard adopted by the Supreme Court of Canada in its BCE decision would enable such directors’ decisions [i.e. preventing a takeover bid]. By encompassing the interests of all stakeholders within directors’ fiduciary duties, the Supreme Court has, in effect, adopted the substance of many U.S. state anti-takeover laws, allowing directors to determine whether the interests of stakeholders other than shareholders should prevail in any given case. Like Mr. Allaire, the BCE decision would permit directors to just say “no” to a takeover bid and would limit the unique market discipline provided by takeover bids. Whatever the merits of this position under corporate law, it does not govern the takeover bid provisions in the securities laws administered by our securities regulators.

But that is my very point. Shouldn’t the provincial securities regulators adopt a regime for takeovers which is consistent with Supreme Court decisions? Is it appropriate for securities regulators to place themselves above the Supreme Court? Is it not possible that the long-term interest of the company, not “maximizing shareholder value”, calls for the rejection of a particular hostile bid?  […] Read more