Happy Sunday from Dry Powder H.Q. in New York, where I’m greatly looking forward to the arrival of the newest Puck writers, John Ourand (the business of sports) and Rachel Strugatz (the business of beauty). Welcome to Puck! Feel free to start using “Zaz” and “defenestrate” liberally.

In tonight’s edition, my read on last week’s boardroom shake-up at Goldman Sachs, where David Viniar will succeed Adebayo Ogunlesi as the firm’s next independent lead director. (Well, maybe not so independent, actually…) Plus the latest Wall Street chatter surrounding Nelson Peltz finally launching his long-threatened proxy war with Bob Iger.

But first… a few thoughts on the Ackman-Business Insider saga and a victory lap at FTX:

• Ackman sharpens his ax: It appears that Bill Ackman is giving up his Twitter/X (aka Twix) fatwa against Business Insider to focus on the promised legal battle against it instead. I suspect that might be a shift in tactics suggested by his legal counsel. Regardless, if the public shaming campaign didn’t get him what he wanted—the removal of the offending articles and some sort of apology from Axel Springer—there’s no reason for him to keep beating the dead horse. So now, it seems, Bill is going to try on the defamation thing for size.

  Personally, I don’t think it’s going to work. But he’s not going to hear that from his defamation lawyers, who, of course, are in business to sue journalists, as sordid a business as that is. And, hey, sometimes it works, especially when the facts of the case are particularly egregious, as they were in the recent $160 million verdict against Rudy Giuliani or in the $787 million settlement between Fox News and Dominion. But with all due respect to Ackman, I just don’t see that happening here. It’s indisputable that his wife, Neri Oxman, made some technical snafus in her 2010 Ph.D. thesis—some missed quotation marks here, some swiped Wikipedia definitions there—mistakes to which she has admitted. Whether that rises to the level of “plagiarism” as Business Insider roared in its headlines is something for the courts to decide, if he brings a case. As my partner Eriq Gardner has noted, most judges (especially in states with anti-SLAPP laws) would be inclined to dismiss. And courts aren’t really in the business of splitting hairs over whether “clerical errors” and “plagiarism” amount to the same thing.

  Bill will probably follow through with his threats, because that is what he does, as I have meticulously documented before. But I’m not sure this is the best use of his time and resources, although oftentimes the reasons billionaires bring these kinds of lawsuits are not legal but rather symbolic: to tell their loved ones and friends and colleagues that they are fighting back and will keep fighting no matter what. And of course, lawyers are only too happy to oblige a wealthy client. But I also have to say, Bill, that the skewering you endured at the hands of my friend Kurt Andersen, in The Atlantic, should make you reconsider the next steps in this sorry saga.

• Following the FTX money: Also, before we get started today, I just want to take a teeny-weeny victory lap, which only my fellow restructuring aficionados will fully appreciate. Last February, the judge in the FTX bankruptcy case, John Dorsey, sided with the FTX debtor and the unsecured creditors’ committee, among other parties in interest, to deny the U.S. Trustee’s motion to appoint an examiner in the case. The examiner, of course, would have been charged with the important assignment of figuring out what went wrong at FTX under the short but eventful reign of convicted criminal Sam Bankman-Fried and his merry band of fellow crypto travelers, causing billions of dollars of losses to FTX customers and creditors. Earlier last year, I wrote that of course an examiner should be appointed, just as one was appointed in the Lehman bankruptcy—which was expensive but also extraordinarily revelatory and important to the denouement of that case. When Dorsey decided that an examiner was not needed—and that the money would be better spent on distributions to suffering creditors—I argued that he was making a mistake.

  Well, on Friday, an appeals court reversed Judge Dorsey’s opinion and ruled that an examiner must be appointed in the FTX bankruptcy case. “Sometimes highly complex cases give rise to straightforward issues on appeal,” the judges wrote in their opinion. “Such is the case here. Multi-billion-dollar company FTX Trading Ltd. filed for bankruptcy after a sudden and unprecedented collapse that sent shockwaves through the cryptocurrency industry. The issue before us is whether [a section of the bankruptcy code] mandates the Bankruptcy Court to grant the U.S. Trustee’s motion to appoint an examiner to investigate FTX’s management. We hold that it does.”

  Of course, this is what should have happened last February. Now it is almost a year later, meaning that the examiner, when he or she is appointed, will be under even more pressure to investigate what happened and to write a report that can be used to distribute fairly, and appropriately, the remaining assets of the FTX estate. In a situation where so much money has been lost (and found), every day without a resolution costs victims more money. So, hooray for the appeals court. Let’s get that examiner cracking.

I had wondered whether an existing Goldman board member such as Kimberley Harris, a former Davis Polk partner who is now general counsel at NBCU, or Ellen Kullman, the former C.E.O. of DuPont, would replace Bayo. They are both distinguished and independent. But late last week, Goldman provided its own answer, in a filing with the Securities and Exchange Commission. The new lead independent director of Goldman Sachs will be David Viniar, the Goldman Sachs chief financial officer from May 1999 (when Goldman became a public company) until January 2013, when he retired from Goldman and became a member of its board. It’s an interesting choice and one that should put to rest once and for all the rumblings about Solomon’s future at Goldman.

Don’t get me wrong, I have tremendous respect for Viniar. As C.F.O., he steered Goldman Sachs brilliantly through the 2008 financial crisis (as I recounted in great detail in my 2011 book about the firm), and he is a legend at Goldman Sachs, which he joined in 1980 after graduating from Harvard Business School. There’s no question that he’s a Goldman Sachs “culture carrier” and probably an extremely valuable board member and partner to Solomon as he runs the firm. “His sound judgment and insight will serve our shareholders extremely well,” Solomon wrote in an internal memo about the appointment, on Friday.

But is he sufficiently independent of Goldman Sachs to be the lead independent director of the Goldman board? It’s hard to see, frankly. Good governance kind of demands that the lead independent director of a board of directors be… independent. David Viniar is a lot of things—most of them very good—but, frankly, he is not independent of Goldman Sachs. I know Solomon took his lumps last year, and good for him that the dissenters inside and outside Goldman have stopped running to the media to convey their agitation. Goldman seems to have returned to being Goldman, at least for the time being. And I get why David, possibly feeling a little burned by Bayo, would want a friendly face as Bayo’s replacement. (As an encore, the board also promoted Tom Montag, a longtime Solomon friend, to head of the board’s risk committee. That gives Solomon allies in the two key positions. Nice work if you can get it.)

Goldman Sachs is still the gold standard on Wall Street and should be a paragon of virtue when it comes to corporate governance. But I think Goldman whiffed on this one. Charles Elson, a lecturer in law at the University of Pennsylvania and the retired founding director of the John L. Weinberg Center for Corporate Governance—yes, that John L. Weinberg, who ran Goldman for more than a decade—was left scratching his head, too. “The point is that anyone who worked at Goldman has an ‘independent’ issue,” he told me on Sunday. And “certainly [Viniar] is not independent. That’s very clear. Because he was a top official. As for Montag, he hasn’t been there for a long time.” Elson surmised that Solomon putting two allies in key positions on the Goldman board was a sign of growing confidence in the security of his position. But he had a warning, too. “That’s when you ultimately blow yourself up,” he said. “When you get really comfortable, that’s when you make mistakes.”

Alas, I agree with Elson, my high school classmate. Although the Goldman filing on Friday reported that the board’s governance committee had selected Viniar as the lead independent director, to think that Solomon had no input into the selection is naive.

In a text to me, Tony Fratto, Goldman’s head of communications, essentially argued “no harm, no foul.” Viniar, he wrote, is “definitely independent” and had “already been deemed independent” by the standards of the S.E.C., the New York Stock Exchange, and by the Goldman board’s own “policy.” Fratto wrote that Viniar met the required standards “including heightened independence standards” when he was confirmed as the chair of the board’s risk committee in 2022, the job that Montag will now be taking.

I guess there is technical compliance for “independence,” and the gut-check standard. Goldman passes the first, but probably not the second.

Fix the streaming EBITDA margins so that they achieve a Netflix-like margin of between 15 percent and 20 percent by 2027? Really, Nelson? How does your presence on the Disney board of directors do anything to fix Disney’s streaming margins? And I have got to believe that Bob Iger and his new C.F.O. are heavily focused on that problem already. These hypothetical new directors would also have to make some suggestions about what to do with ESPN—a complex business with which they have little expertise. I can’t figure out, per the Trian proxy, what “Commit to a reasonable, defined payback period and return profile on ESPN Flagship DTC and communicate it in detail prior to launch” actually means.

I concede that the Croc’s extensive experience in boardrooms might allow him to help Iger with the governance changes and his succession problem. But, to break the fourth wall here: I think Disney board nominee James Gorman, the former C.E.O. of Morgan Stanley (and my old business school classmate), could be more helpful to Iger and his fellow board members on this topic than Peltz, especially since Gorman just completed a successful succession process at his firm. On the other hand, I guess the fact that Peltz and Rasulo would be speaking for 32.4 million Disney shares, worth some $3 billion—about 200x the number of shares owned by the non-Disney management on the board—could account for some moral suasion.

But I confess that I’ve never quite understood the theory about waging an expensive proxy battle. You spend multiple millions of dollars and if you win, what are you left with? Two seats on a 12-member board for one year and a whole lot of acrimony. Since it’s one vote per person on a corporate board of directors, how do you get your way having only two seats when you’ve pissed off the other board members? That’s not enough votes to get anything he wants done, done.

Fundamentally, I think the whole proxy fight thing only makes sense if you are looking to replace the whole board or a majority of the board. I understand there are staggered boards and only so many seats are available at any given time, and a journey of a thousand miles begins with a single step. But I would think a behind-the-scenes campaign would not only be more cost-effective but more effective, full stop, regardless of cost.

Yes, Nelson did try a few times to get Iger’s attention the old-fashioned way, without much success. According to the Trian proxy statement, a month or so after giving up the fight last April, on May 30, 2023, Nelson sent Iger a memo on how Disney “could improve its communications with investors,” including by holding an investor day (which Disney did in September); by better explaining the “profit potential” of the streaming business; and by explicating in more detail the cost-savings that Iger had previously agreed to embark upon. Peltz and Iger spoke the next day, and Peltz asked Iger for a board seat to help Iger implement the directives laid out in the May 30 memo. Iger said he would discuss Peltz’s request at the June board meeting.

On July 3, Iger and Peltz spoke again, and Iger informed Peltz that the board had decided it was “too early” in the board selection cycle for Peltz to join the board. Peltz expressed his disappointment and said he would make the same request again in a few months. In October, Nelson met a few times with Blair Effron, the co-founder of Centerview Partners, who was representing Disney, to discuss Nelson joining the Disney board. In their second meeting that month, Effron informed Peltz that Iger was “disinclined” to have him join the board. Last Halloween, Peltz called Iger to request a meeting before the holidays to discuss the idea of board representation. That meeting occurred on November 19 at Disney’s offices in New York City. He asked for three board seats at the meeting and said that if Disney nominated board members who were not Trian’s representatives, as Iger soon did, that it would be a case of “reactive [b]oard self-refreshment on the eve of a proxy contest.”

Iger said he would discuss Peltz’s request with the board at its November meeting. Peltz made his case to be on the board in a series of emails and letters to Disney executives and board members prior to the November 29 and November 30 board meetings. They had no effect. At the board meeting, the Disney board nominated Gorman and former Sky C.E.O. Jeremy Darroch. It was a stick in the eye: Iger offered Peltz the consolation opportunity to address the board and explain his thinking for improving the financial performance of the company. But Peltz, no doubt feeling snubbed and ignored, declined that kind offer. He said he had already done that earlier in the year during his first proxy fight.

And so it is, again, war. And I suppose that Peltz has the inclination and financial resources to continue the fight, especially as the fiduciary for $3 billion worth of Disney shares. But I still don’t get what two board seats are going to do for him in this context. He probably won’t get them anyway, so it’s all kind of just moot. We’ll know in April, if not before.