What happens to corporate governance once index funds reach 50.1% of the stock market?

Index funds are becoming more and more popular these days and their rise doesn’t show any signs of slowing down anytime soon. Assuming they continue on their current path towards taking over more and more of the stock market, will weird unintended side effects start cropping up? I’m not really clear how current index funds interact with corporate governance and how that might change as their stakes increase.

For example at 50.1% ownership, wouldn’t hostile takeovers now become impossible? Since index funds will refuse to release their allocation at any price, there’s no long any mechanism for any other party to acquire majority ownership.

Also, how would shareholder led initiatives work? I get that even in the current climate, any initiative without the board’s approval has a snowball’s chance of being passed but does that chance become 100% impossible now?

What about ousting unpopular board of directors? Index funds don’t get involved in corporate governance but does that mean there’s now no way to push out a BOD?

Or does it achieve the opposite? Will having the bulk of the shares voting abstain mean it’s much easier to activist investors to raise the capital necessary to force an issue?

Hmm… looks like index fund managers vote their stock more often than you might think…

Yes, but is the same index fund manager voting both his PEP (Pepsi) and KO (Coke) stock? Is there a conflict of interest there?

This was discussed in another recent thread, which began with a link to a pdf(*) titled “On the Economic Consequences of Index-Linked Investing”. In that thread I link to a pdf paper that shows why the problem exists even without index funds.

    • Are we still expected to provide pdf warnings? It makes me feel silly.

Not impossible. Maybe not even that much harder (although I don’t know enough to say for sure). There’s still a way to break an index share into its constituent shares and play with the individual stocks again. Ma and Pa retail investor can’t do it, but big market makers can, and will in a microsecond if there’s a profit in it.

Hostile takeovers are made at a premium above the market price. So if people start valuing the underlying shares more than the index because they want to get in on the sweet takeover premium, then the index will break up into individual shares again and those will be sold to the taker-overs.

No. “Hostile takeovers” are hostile to management, not shareholders. Since the index funds are shareholders, they should theoretically be as interested in a hostile takeover as any other investor. They should decide whether to tender their shares like any other shareholder.

Different index funds have different policies on when to tender shares. One common index fund policy is to tender shares as long as the tender offer price is higher than the market price. If this kind of fund controls more than 50% of the shares, a successful tender offer just requires offering more than the market price. Other funds have different policies and it might be harder to get these funds to tender their shares, complicating a hostile takeover bid.

This all goes to proxy voting. Index funds, other mutual funds, and ETFs vote proxies in the best interest of the fund’s’ shareholders. They typically get advice from proxy advisory firms, most notably Institutional Shareholder Services (ISS) and Glass Lewis. Winning a proxy fight is much easier if these firms are on your side. I don’t think the percentage of index fund ownership makes any difference in the likelihood of success for a proxy contest.

So what happens to S&P index funds when the S&P committee alters the composition of the index? Like what happened a few weeks ago when Dun & Bradstreet was replaced on the index by Gartner Inc. Do index fund managers have to dump all their Dun & Bradstreet shares and buy up Gartner Inc shares? It seems like this would have a wildly distorting effect on the share prices of those companies which is based on nothing inherent to the companies.

Basically, yes, index funds dump their shares of the departing stock and buy shares of the new stock. This affects both index funds and actively-managed funds that have investment policies saying they can only invest in S&P 500 stocks (a much smaller and shrinking group).

This pressure to buy stocks being included in the S&P 500 index leads to a well-studied phenomenon known as “the S&P 500 effect.” Standard & Poors announces index changes about a week in advance. From the time of the announcement that a stock is being added to the S&P 500 until it is actually added, the stock tends to go up in price about 3% compared to other stocks in the index. There is also some tendency for the stock to underperform after it is added to the index but the speed and certainty of this change is not as clear.

Because the S&P 500 is value-weighted, and because stocks added to the index tend to have very low market values compared to stocks already in the index, the effects of a single substitution aren’t that large. For example, Gartner is 0.05% of the S&P 500. If an index fund got completely on the wrong side of this substitution and bought Gartner for its portfolio only after the full average 3% price change occurred, it would underperform by 0.0015% compared to how it would have done if it bought Gartner the moment before the announcement. This is a pretty small effect.

But, most index funds are smarter than this. They don’t wait until the substitution is actually made to buy Gartner-they start buying on the announcement before the price has fully adjusted to the S&P 500 effect. Furthermore, index funds also invest in futures and options which are automatically adjusted to reflect new components in the underlying index. These derivatives aren’t affected by the S&P 500 effect at all. As a result, the 0.0015% can be thought of as a worst-case scenario. Actual funds mostly do better than this.

Finally, the effect as I’ve described it is really a chance for an index fund to do better than the index. Because the index change is announced in advance, the effect on Gartner’s stock price happens before it is added to the index. If the fund is smart enough to capture even part of the index effect from substitution, it will outperform its index by buying Gartner for less than the price at which Gartner is included in the index. This is means that the fund’s performance differ from the performance of the index, which is called tracking error, but since, in this case, the tracking error is making the fund investors more money, no one really complains. In fact, tracking error from substitutions and further tracking error from constantly arbitraging options and futures means that index funds tend to have raw performance (not including management fees) roughly equal to (and sometimes better than) the underlying index even though the fund also has to pay transaction costs to invest.

I don’t want to overstate the ability of index funds to outperform their index. Index funds bear management fees plus the S&P 500 effect isn’t purely on their side. Although index funds can generally benefit from the index effect when buying Gartner in our example, they will similarly lose when selling Dun & Bradstreet. However, even with this, because new stocks substituted into the index are usually bigger than the stocks they replace in these types of non-merger, non-bankruptcy substitutions, the likelihood is that the fund has more potential to make money on the positive S&P 500 effect than it loses on the smaller stock.

There are SEC rules (please, no laughing…) that say that the majority shareholder(s) cannot ignore the wishes of the minority - which is why when there is a buyout, the buyers must make the same offer to all shareholders, no sweetheart deals, etc. So if a fund were to order Pepsi bosses to tank the stock (“Make a few really bad commercials!”) to boost the Coke stock that they hold more of, for an example, they would be in violation of several laws; as would an executive who followed their orders.

But true - a saying I heard about short-term stock buyers is “nobody washes a rented car”. If the stock is not being held for its value, long term, then the shareholder does not have a vested interest in oversight for ensuring the corporate executives execute good judgement. They buy based on guesses about market forces. The same might be said for funds that simply buy stock based on math formulas rather than perceived value. Not to mention buyers who react to or only care about this quarter’s results, rather than long-term planning.

However, there are some funds that buy and hold based on perceived value and opportunities - IIRC, isn’t this how Warren Buffet operates, for example?