Podcast Summary: Shareholder Primacy — "What Activists Are Doing Right Now"

Podcast: Shareholder Primacy
Host(s): Mike Levin (activist investor), Ann Lipton (Colorado Law professor)
Date: December 10, 2025
Episode Theme:
This episode takes a deep dive into the practical realities of activist investing during the critical year-end period. Mike walks listeners through the nuts and bolts of what activist investors are actually doing “right now” — from the cycle of activism planning to the minutiae of proxy calendars and major shifts in ESG (Environmental, Social, Governance) activism due to recent SEC policy changes. Ann provides sharp, legal context and prompts reflection on both traditional and ESG activism.

1. Overview of Main Theme

This episode is dedicated to dissecting the concrete actions and strategies activist investors undertake at the end of the calendar year — a particularly busy and strategic time in the activist calendar. The hosts examine everything from the typical three-year activist cycle and planning processes to current-year specifics, position management, and regulatory changes affecting both traditional ("big A") and ESG ("little a") activism.

2. Key Discussion Points & Insights

2.1 The Three-Year Timeline of Activist Campaigns

Mike's Rule of Thumb (03:36):

• The activist process is typically a "three-year period process:"
  • Year 1: Planning, analysis, accumulating shares — much of this is "under the radar."
  • Year 2: Public-facing activism (filings, engaging shareholders/board, making plans public).
  • Year 3+: Results — actual changes implemented, board involvement, settlements monitored.

"The work of an activist...generally takes three years. It’s a very long period of time...and it’s because of some of the unique aspects of what we do." — Mike, (03:36)

2.2 End-of-Year Tasks for Activists

What Happens Now? (05:39+)

• Most financial analysis is already done — year-end is about finalizing activism plans.
• Position Management:
  • Managing positions to avoid mandatory 13D filings (often staying just under 5%).
  • Deciding when to go above the disclosure threshold for strategic impact.
• Finalizing Activism Plan:
  • Lays out specific steps: filings timeline, books & records demands, budget, recruitment of proxy solicitors/PR, potential settlement outlines.
  • Includes assessments—“Which board members are soft? Who might be targeted?”

"There’s a whole lot of planning that’s largely been… finalized…the activism plan could be the specific steps—when we’re going to do these filings, when we’re going to do books and records demands, when are we going to reach out to the board, what’s the budget for this, etc.” — Mike, (09:22)

2.3 Universal Proxy & Board Targeting

• With three years of universal proxy (12:29), activists are fine-tuning their tactics:
  • Deciding "how many directors do we want to target for replacement or defeat."
  • Classified (staggered) boards aren't insurmountable, but they slow progress.

"The reason classified boards are such a sticking point and such an irritant is because...that three-year period I talked about, you add a year for every class." — Mike, (13:21)

2.4 Legal Tactics & Corporate Governance

• Bylaw amendments (14:41) are being drafted as pressure tools (e.g., written consent, special meetings, poison pill provisions).
• Monitoring Deadlines: Activists operate on a strict calendar tied to shareholder meeting cycles.
• Director Recruitment: Early outreach for potential board candidates—sometimes involving search firms.

"Another way to add pressure on a company...if we do like a menu of bylaw amendments..." — Mike, (14:41)

2.5 Info Gathering: Books & Records Demands

• Most books & records demands now focus on getting shareholder lists—critical for coalition building.
• Traditional info (board minutes, questionnaires) still matters, but...
• Main Goal: “Contacting other shareholders” to assess and build broader support.

"Predominant books and records demands among activists, at least right now, are for that kind of shareholder information, which, you know, leads us to the main huge activity that's frequently underrated: contacting other shareholders..." — Mike, (18:15)

2.6 The Shareholder Outreach Phase

• Activists use shareholder lists (NOBO lists, etc.) to measure sentiment, coalition build.
• "My 3%...I'm not going to get very far...However, if I can say to that board, I am confident that another 25% of the shares agrees with me, that totally sets up a whole different setting." — Mike, (19:29-20:00)
• Two key moments a company sees the activist: books & records demand, or converting shares to record name.

3. ESG ("Little A") Activism and Recent SEC Changes

3.1 Distinguishing Activist Styles (24:40+)

• "Big A activism" = financial/strategic (e.g., board seats, business changes)
• "Little a activism" = ESG, typically via 14a-8 shareholder proposals

3.2 ESG Proponents: Feeling the Squeeze (25:10+)

• ESG activists are "very worried and possibly panicked"—the SEC is making it much harder for their proposals to be included in proxy statements.
• Process for excluding ESG proposals is in flux due to changes in how the SEC handles “no action” requests.

"At this moment, in December of 2025, they are very worried and possibly panicked because their activism pertains almost entirely, not exclusively, to shareholder proposals." — Mike, (25:10)

3.3 SEC Policy Shifts for Shareholder Proposals

• Previously, the SEC would affirmatively issue "no action" or "will not sue" letters for excluding proposals (B: 31:27+).
• Now, the policy is more hands-off or requires companies to self-certify (with a "papered" legal letter), and the SEC will only comment on certain issues (B: 34:07+).
• Implication: Companies face little legal risk in just excluding proposals from smaller, less legally aggressive shareholders.
• The practical effect is that “historically, [the] 14a-8 [process] was a way for even small, normal, little ordinary retail shareholders to have their say.” But that’s now threatened. (B: 38:40)

“I don’t actually think that there is a distinction between those two paths. Which means if a company chooses not to exclude a shareholder proposal either with all the papering or not, the only risk is that the shareholder themselves sue… but as a practical matter… that’s not happening.” — Ann, (36:36)

3.4 Early Evidence: Actual Proposals & Exclusions

• Six recent “no objection” examples: all John Chevedden governance proposals — excluded for technicalities (ownership threshold, timing, substantial implementation). (A: 39:04+)
• Companies may become much bolder in excluding small shareholder proposals; larger institutions still likely safe.

4. Notable Quotes & Memorable Moments

• On the activist calendar:

  "There's a whole lot of planning that's largely been...finalized." — Mike (09:22)

• On outreach:

  "With my 3%, I'm not going to get very far...however, if I can say...another 25% agrees with me, that totally sets up a whole different setting..." — Mike (20:00)

• On the shift in ESG activism:

  "ESG activists are very worried and possibly panicked because their activism pertains almost entirely...to shareholder proposals." — Mike (25:10)

• On SEC changes:

  "If a company chooses not to exclude a shareholder proposal...the only risk...is that the shareholder themselves sue...but as a practical matter...that's not happening." — Ann (36:36)

• On retail shareholder impacts:

  "Historically it was always viewed like courts viewed 14a-8 as like a way for even small, ordinary retail shareholders to have their say." — Ann (38:40)

5. Important Timestamps

• (03:36): Mike outlines the three-year rule of activist campaigns
• (07:28-08:24): Activist work cycles tied to proxy season/calendar
• (12:29): Universal proxy and board targeting
• (14:41): Bylaw amendments as pressure tactics
• (18:15): Books and records demands for shareholder lists
• (20:00): The significance of building a shareholder coalition
• (24:40): Introduction of ESG/little a activism
• (25:10): ESG activists’ concerns in December 2025
• (31:27-36:36): Detailed breakdown of the new SEC process for excluding proposals
• (39:04): Real-world impact: Six no objection letters—technical basis for exclusions

6. Flow & Tone

The episode is conversational yet deeply informative, drawing on Ann’s legal expertise and Mike’s on-the-ground activism experience. The tone is candid, occasionally wry, and focused on sharing the realities—both strategic and regulatory—of being an activist investor at the end of 2025.

7. Episode Summary

If you want to understand what "activists are doing right now," this episode is a masterclass in the year-end workflow of financial activists (analysis winding down, activism plans being finalized, outreach beginning to coalition build), as well as a timely exploration of how ESG activism and small shareholder rights are being upended by recent SEC actions. Both the legal and financial sides receive equal, real-world scrutiny, with hosts providing both specific recent examples and reflective context — a must-listen for anyone interested in the intersection of activism, securities law, and corporate governance.