Tesla and WeWork Show Cracks in Governance

By DirectorCorps

November 18, 2019 All Industries Corporate Governance

Two companies in the limelight recently for awarding huge pay packages illustrate some of the problems with governance more than they illustrate problems with pay.

Tesla co-founder and CEO Elon Musk’s pay of more than $2 billion in 2018 made the rest of corporate America’s paychecks seem paltry by comparison. (The second-highest paid U.S. CEO was Discovery’s David Zaslav, who made $129.5 million in 2018, according to Equilar.)

Musk’s compensation could increase to $56 billion if the company’s market value increases $600 billion and its revenue by $160 billion, according to an analysis by the compensation consultants Semler Brossy.

The office sharing company WeWork has also recieved a lot of attention over its corporate governance and executive compensation. Parent company We Co.’s IPO plans collapsed this year, but CEO Adam Neumann still walked away with reportedly up to $1.7 billion while many employees have worthless stock options and could lose their jobs. The Wall Street Journal reported that Neumann’s pay was necessary “to persuade him to give up his substantial control over the company.”

Poor governance practices more often lead to outsized pay packages than poor compensation plans do, says Richard Harris, the executive compensation advisory partner at consulting firm AON. Harris didn’t want to comment on Musk’s pay.

Tesla’s board, though, will have to comment. In an unusual move, a Delaware judge has ruled that Tesla must defend his pay package after shareholders filed suit in 2018. It’s unusual because the Delaware Court of Chancery doesn’t usually opine on CEO pay, leaving that up to the discretion of boards.

This time, however, the judge agreed to what’s known as an entire fairness review based on Musk’s controlling interests in the company. In an earlier case, Vice Chancellor Joseph Slights characterized Musk as a “conflicted, controlling shareholder, and as such … ought to provoke heightened judicial suspicion. The case will examine not whether the $56 billion is excessive, but rather how much control the CEO has over the board’s decisions.

Technology companies and startups typically give founders lots of control, but WeWork still managed to test those limits. The CEO of its major funder, SoftBank Group Corp., has admitted turning a blind eye to corporate governance weaknesses at the firm. Neumann leased back properties he owned to the company and borrowed hundreds of millions against his stock. The company was stocked with numerous members of Neumann’s extended family: his wife was the company’s chief brand officer, his brother-in-law ran We’s fitness offering and his wife’s brother-in-law was chief product officer. At one point, an entity controlled by Neumann sold the rights to the word “We” to the company for $6 million before undoing the transaction following public pressure, according to The Wall Street Journal.

SoftBank reported its first quarterly loss in 14 years in November 2019 following its decision to invest more than $10 billion into WeWork after the IPO failed.

As boards grapple with the risk inherent in their pay packages, they may want to consider that most of the risk stems from the governance of the company.