Business: Shake Shack owns, operates and licenses Shake Shack restaurants, which offer hamburgers, chicken, hot dogs, crinkle-cut fries, shakes, frozen custard, beer, wine and other products. The company was originally founded in 2001 by Danny Meyer’s Union Square Hospitality Group. The company has owned restaurants in every region of the U.S. and licensed locations across the Middle East, Asia and the United Kingdom.

Stock Market Value: $2.76B ($65.40 per share)

Percentage Ownership: 6.6%

Average Cost: n/a

Activist Commentary: Engaged Capital was founded by Glenn W. Welling, a former principal and managing director at Relational Investors. Engaged is an experienced and successful small cap investor and makes investments with a two-to-five-year investment horizon. Its style is holding management and boards accountable behind closed doors.

Shake Shack entered a cooperation agreement with Engaged. As part of that agreement, the restaurant chain appointed Jeffrey D. Lawrence, former CFO of Domino’s Pizza, to its board and agreed to work with Engaged to identify an additional mutually agreed upon independent director to appoint to the Shake Shack board with restaurant operations experience.

Shake Shack is an iconic fast-casual restaurant founded by a culinary visionary, Danny Meyer. Through Union Square Hospitality Group, Meyer founded and operated some of the most critically acclaimed gourmet restaurants in the world for many years. Over the past 20 years, he and his team have developed one of the greatest casual hamburger chain restaurants in the country, Shake Shack. They took Shake Shack public in 2015 with 63 restaurants and have expanded to 436 restaurants in eight years.

Much of the senior management team came from Union Square Hospitality Group and the fine dining industry. Perhaps most notably the CEO, Randy Garutti, has a long history working with Meyer and was the general manager at Union Square Café and Tabla in New York City. The problem is that the same skillset required to create a brand and run upscale, gourmet restaurants is not the same skillset needed to operate and scale a quick-service restaurant. In fact, some might say it is a completely opposite skillset. Accordingly, restaurant margins at Shake Shack have declined by 790 basis points since 2018 and corporate return on capital has gone from greater than 30% to less than zero today. As a public company, Shake Shack has significantly underperformed both the market and its peers.

The good news is that the hard part – creating an iconic brand – has already been done. Not many people can do that. The easy part – scaling an already strong and growing brand – has been done by innumerable people, many of whom are available to do it again. This means getting a board that is focused on putting together a management team with experience operating and expanding quick-service or fast-casual restaurants and holding that team accountable if they do not succeed.

To that end, Engaged announced that it had identified three new director candidates and was pushing for the company to retain an operational consulting firm. One of these candidates, Kevin Reddy, has extensive experience operating and growing restaurant chains like Chipotle. Another candidate is a co-founder of Engaged, and the other is an experienced advisor and consultant. Because the board is staggered, only four of 11 directors are up for election this year. That is only the tip of the iceberg of the challenges Engaged faces in this campaign as this is as bad of a corporate governance structure as we have seen in a public company.

Meyer controls just under 9% of the company’s shares, but he holds special rights over corporate actions that far exceed his economic ownership, including (i) the ability to appoint five directors; (ii) the ability to designate 50% of the members of each committee of the board; (iii) hiring or firing the CEO; and (iv) increasing or decreasing the size of the board. In other words, this is Meyer’s company and only he can make significant changes.

As a result, this is a crusade of persuasion for Engaged. Engaged had an opportunity to go to a proxy fight and have the shareholders replace three incumbent directors, including the CEO, with new directors. While this would not have given Engaged or the new board the power to overrule anything Meyer and his incumbent directors wanted, it would have sent a strong message to them that the shareholders expected change. Instead, Engaged settled for one director who was not even one of the three they proposed and a second to be agreed upon, which also will not likely be one of the three the firm proposed.

This is a definite victory for the company as there is very little one director could do on a board like this. It allows Engaged to claim a win, but the firm is still reliant on Meyer’s decisions, and it lost a valuable opportunity to send a message to management. This effectively changes nothing and gives Engaged no more power to institute the changes it so astutely identified to create shareholder value. Identifying the problems is one thing and having a path to fix them is entirely different. The path here is completely controlled by management.

Ken Squire is the founder and president of 13D Monitor, an institutional research service on shareholder activism, and the founder and portfolio manager of the 13D Activist Fund, a mutual fund that invests in a portfolio of activist 13D investments.