Investment firm JAT Capital sent Bed Bath & Beyond’s board its second open letter of the month last week. This time, JAT founder John Thaler is criticizing the board for creating the worst boardroom crisis he’s ever seen.
On Friday, Thaler wrote a letter to the board of Beyond, Inc shredding its corporate governance practices. JAT owns a 9.6% stake in Beyond; the company used to be known as Overstock.com until it bought Bed Bath & Beyond out of bankruptcy in June and rebranded itself as such. Thaler’s scathing letter to Beyond’s board of directors accused it of being needlessly secretive, gearing up for a nonexistent proxy battle, and botching a CEO succession plan.
“Something strange is happening here, and the people in charge must explain themselves,” JAT founder John Thaler wrote in the letter.
Thaler said the board’s decision-making and behavior were unprecedented and the worst he’s seen in his career.
“Maybe these actions are simple errors in judgment or might even have some logical explanation, but of course after a string of repeated actions are taken that all point in the same direction it is natural to question whether people have bad intent,” Thaler wrote.
Questioning the board chair
Thaler’s main antagonist in the letter was board chair Allison Abraham, for whom he reserved his harshest criticism. Abraham, who has been board chair since 2017, is the founder and principal of a K-8 private school in Virginia. Thaler accused her of planning a defense for a proxy battle at the expense of her duties. “A defense against what?” Thaler wondered in his letter.
The question for Thaler remains why the board would gird against a proxy fight when he hasn’t filed for one at the upcoming shareholders’ meeting. “It’s a bizarre thing to engage in a proxy defense, when there’s no proxy to defend against,” Thaler told Fortune.
JAT says it isn’t an activist investor but has been forced into being one because Beyond’s board has been unresponsive to its questions. The firm encouraged other shareholders to demand answers from the board as well. “Tell Allison [Abraham] and her team to simply come to the table to answer these questions,” Thaler wrote. “If she refuses to do so it is likely because she doesn’t like the answers, in which case either step forward and fix the situation or resign.”
Bed Bath & Beyond told Fortune it was focused on the company’s day-to-day operations. “We continue to engage regularly with shareholders to communicate our strategy and understand their perspectives, as we value constructive engagement,” the company said in an emailed statement. “The board and management team will continue to act in the best interests of our employees, our customers, our suppliers, and all of our shareholders.”
Marcus Lemonis’s role
Throughout the letter Thaler accuses Abraham of being suspicious, even conspiratorial toward board member Marcus Lemonis, the CEO of Camping World and star of the CNBC show The Profit, who was appointed to the board in October. Thaler argues that Lemonis as the CEO of a large, specialty retailer has operational experience that would be directly translatable to helping Bed Bath & Beyond with its turnaround. Although Thaler does also admit that Lemonis might be in it to help his personal brand as an expert in the corporate turnaround he’s developed on his CNBC show where he steers struggling businesses back to profitability.
“His kind of public persona is that of the quote, unquote fixer,” Thaler says.
When Thaler finally did get the chance to ask Abraham about her suspicions regarding Lemonis she replied that she was worried he had a “secret nefarious plot,” according to Thaler. When asked to provide evidence for the claim, Thaler says, Abraham admitted she had none. “You’re using this invented suspicion that you can attach no validity to of any kind as the means to block [Lemonis] from doing the thing that you acknowledge the company should do,” Thaler tells Fortune.
He was left incredulous by the ordeal both in the letter and in an interview with Fortune. “Truth is I wouldn’t believe this interaction took place if I hadn’t had it myself,” Thaler writes in the letter.
JAT has backed Lemonis since he joined the board. Thaler repeatedly referred to Lemonis as the most qualified candidate to oversee the company’s turnaround in a role like executive chair of the board. It doesn’t appear likely that Lemonis would accept the role of CEO—a position that only became vacant after JAT pushed for the firing of the company’s previous CEO Jonathan Johnson in its earlier letter from the beginning of the month.
Revisiting CEO’s ouster
Even the circumstances of Johnson’s removal from his previous role as CEO, which he’d been in for 20 years, became fodder for controversy in Thaler’s letter.
He claimed Abraham and the board had misrepresented the circumstances of Johnson’s departure by saying he had “stepped down” rather than because investors had lost confidence in his ability to run the business after years of middling results. In fact, just four days before Johnson’s departure was announced JAT sent a letter to Beyond’s board asking he “be removed immediately.”
Thaler took issue with the board and Johnson calling it the “ideal time” for a change of leadership, a common platitude used in these sorts of corporate announcements.
“Now is the ideal time?” Thaler hypothetically asks. “In the middle of a company rebranding effort, just as the company embarks on a $150 million marketing campaign? And that coincidentally coincides with shareholders calling for Johnson’s removal.”
After Johnson was removed, the board appointed president Dave Nielsen as interim CEO. Nielsen, according to Thaler’s letter, repeatedly asked for Lemonis’s advice in running the company but was barred from receiving it by Abraham and the board. By Thaler’s own admission Nielsen could grow into the CEO role, but at the moment he isn’t ready to assume it on a full-time basis.
“Whatever operational leadership you needed prior to firing the CEO, you need it more” now, Thaler says.
He remains miffed about the board’s reasoning. “I can’t even create a hypothetical explanation for this that doesn’t involve bad intent,” Thaler said.
Caught in the middle, Thaler says, are shareholders who now find themselves in the melee of a possible proxy battle that could affect their participation in future boards. Thaler hopes they can take solace in the fact that his proposals are reasonable, he writes in his letter. “The good news is that there is nothing even remotely controversial about any of the above,” Thaler concludes.
