Likely, we all thought the pandemic would be over sometime in 2021, and our hopes rose and fell with the daily infection counts. The vaccines worked better than expected, restrictions were relaxed, and things started to return to normal. Then came the COVID variants, which threw a wrench into our hopes for a swift recovery, and Omicron raises the specter of a deadly winter.
While the year had its joys, we would be remiss if we neglected to recall that, in our personal lives, SGI members and staff also mourned losses, including one who endured the loss of a daughter, and weathered storms.
The great problems that we face, such as racism, poverty and the climate crisis, are structural in nature. With long histories, they are embedded socially in ways that are often masked in day-to-day life.
Sadly, we learned on January 6th that the U.S., like so many places around the globe, is an all-too-fragile democracy, vulnerable to demagoguery and the exploitation of populist sentiment. Aware that corporate donations contributed to the chaos, shareholder calls for greater corporate political spending and lobbying disclosure garnered higher support than usual.
After President Biden’s increased the 2030 NDC to reduce GHG by 50%, the 26th meeting of the UN Conference of the Parties (COP26) fell short of expectations. However, important pledges on deforestation and methane and the phase down of coal and fossil fuel subsidies were steps forward. Senator Joe Manchin’s declaration that he opposes the Build Back Better reconciliation bill makes the administration’s task of meeting its climate goals far more difficult. As corporations and asset managers make net-zero commitments, Milton Friedman is turning in his grave; but it would be unwise to trust that companies will deliver on their promises, without investor pressure and third-party verification.
The company formerly known as Facebook, now Meta, aims to shift into a new organization focused on virtual connectivity. Rebranding is not new for this firm; some may recall that it was originally TheFacebook.com. Mark Zuckerberg explained the name change in a founder’s letter for the new company at the end of October.
Facebook also announced at the beginning of November that it would end its facial recognition program. In the fine print of accepted terms, Facebook users permitted the company to develop facial ID templates. Consequently, Facebook now will delete more than a billion facial recognition templates.
Facebook’s new name changes absolutely nothing about the company’s problems – an avalanche of misinformation, hate, and other issues within the platform. To paraphrase the Bard, “That which we call Facebook / By Any Other Name would smell” (the phrase can stop there, omitting the subsequent words of Juliet). Frances Haugen, the Facebook whistleblower, has brought to light, with internal company documents, a series of substantial concerns.
It comes to this: If we cannot trust Facebook in the real world, why would we be willing to trust them in the “metaverse?” If we occasionally experience Zoom fatigue, do we really want to live even more of our lives on the internet? Facebook needs not so much a change of name but a change of heart.
As Facebook faces critical coverage pushing the company to reform itself, it also confronts the virtually impossible: Transforming a company with a market capitalization just south of a trillion dollars—and yet that change, that conversion (what the Gospel calls metanoia) is what Facebook desperately needs.
While these efforts are important, will they change things at Facebook? Not yet. Zuckerberg, through Facebook’s dual class share structure and his “super-shares,” controls about 58% of the vote. Even if our efforts do not change the company at the 2022 shareholder meeting, we must remain persistent and call for genuine metanoia from this company, not just a glossy rebranding.
On May 26, 2021, a little known investment company called Engine No. 1 challenged and won a proxy battle with one of the world’s largest public oil and gas companies, Exxon Mobil. Three of Engine No. 1’s four proposed Board Members who have qualified energy industry experience were elected to the board. They will challenge company management to transform their business model for a low carbon economy, which will benefit all stakeholders including workers and shareholders alike.
Shareholder elected Greg Goff, former CEO of Andeavor and EVP of Marathon Petroleum who thinks that mitigating climate change is part of corporate responsibility; Kaisa Hietala, a former VP of Finnish renewable energy company, Neste Oyi; and Alexander Karsner, a strategist at Alphabet, Inc. These three candidates beat out three of Exxon Mobil’s current, reelected board members.
Shareholders proposals co-filed by members of the Seventh Generation Interfaith also received majority votes at the Exxon Mobil AGM. Dana Investments, the Capuchins, and the School Sisters of Notre Dame, Central Province co-filed a proposal asking for a report on climate lobbying (64% vote). The Sisters of St. Agnes co-filed the proposal asking for broader lobbying disclosure (55% vote). The Dubuque Franciscan’s co-filed the separate chair proposal (22% vote). Members of SGI and ICCR also co-filed successful climate proposals at Chevron, ConocoPhillips and Phillips66.
Members of ICCR have dialogued and filed shareholder resolutions at Exxon Mobil since the early 1990’s. The company always responded with platitudes about their amoeba studies for alternative fuels, but refused to set targets or goals. What has changed?
Here are my educated guesses:
The Time has come! Finally, extreme weather events and consistent calls from scientists have increased public awareness of climate change, although a decreasing percentage remain climate deniers. Climate Activists like Greta Thunberg are finally getting through to all of us, especially to young people.
It is irrefutable that drilling, and burning petroleum produces is a major cause of climate change as well as of human rights abuses. The latest IPCC report removed any uncertainty: “It is unequivocal that human influence has warmed the atmosphere, ocean and land.”
There is growing popularity of ESG strategies. It has become easier to invest sustainably through many asset managers. Bloomberg projects ESG assets may hit $53 trillion by 2025, a third of global AUM.
The International Energy Agency (IEA) Net Zero by 2050: a Roadmap for the Global Energy Sector report published shortly before the Exxon Mobil AGM called on governments and companies to stop investment in new fossil fuel supply projects or coal plants; no sales of new internal combustion engine passenger cars after 2035; and net-zero emissions in the global electricity sector by 2040.
Pope Francis continues to remind us to care for our common home. The Vatican released 14 recommended actions in June 2020, including ‘ethical responsible and integral criteria for investment decision making.” The Vatican Dicastery for Promoting Integral Human Development urges that Church divestment from fossil fuels and reinvestment in renewables is a moral imperative.
The U. S. Catholic Bishops are reviewing their Socially Responsible Investment Guidelines for the first time in 20 years. Bishop Gregory Parkes, USCCB Treasurer, who worked in the banking industry before entering the priesthood, is seeing the “financial writing on the wall” for fossil fuel companies who will not or cannot diversify.
A U. S. House subcommittee is “demanding that Exxon Mobil, Shell, Chevron testify before Congress about the industry’s decades-long effort to wage disinformation campaigns around climate change.” (St. Louis PostDispach, July 3, 2021 and New York Times, June 16, 2021)
The majority votes at Exxon Mobile indicate a tipping point in pushing fossil fuel companies to transition to low-carbon business models. SGI and ICCR members have persisted and led the way with corporate engagements…and are continuing to see success.
SGI members have been engaging mac & cheese and ketchup producer, Kraft Heinz, on issues including nutrition, deforestation, and human rights for several years. In 2019, Kraft Heinz published a Human Rights Policy after withdrawal of a shareholder resolution filed by The Capuchin Province of St. Joseph. Subsequently, after an ESG materiality assessment, Kraft Heinz ranked human rights as among the issues with the greatest impact on the company and of most importance to its stakeholders.
The Capuchins and other SGI and ICCR members continued to engage the company on the implementation of their new policy. However, their lack of transparency and slow progress on implementing a due diligence process resulted in a low score of 21 out of 100, ranking 27 out of 43 companies on the most recent Know the Chain Benchmark, which has also identified tomatoes, cattle, and coffee being sourced by Kraft Heinz as having a high risk of human rights abuses. This was further confirmed by the Corporate Human Rights Benchmark who scored Kraft Heinz 7.5 out of 26, including 0 points on Human Rights Due Diligence.
Given this lack of progress, SGI members filed a second proposal asking the company to complete a Human Rights Impact Assessment to “mitigate against significant operational, financial, and reputational risks associated with negative human rights impacts throughout its supply chain.” Although the company undertook a global human rights risk assessment last year, they did not publish plans to complete a due diligence process. However, they have committed to undertake third-party due diligence audits prioritizing the most problematic countries and commodities identified in its risk assessment. Kraft Heinz further acknowledged that social audits are not designed to capture sensitive labor and human rights violations such as forced labor and harassment, and their due diligence audits will engage workers in a meaningful way to determine root causes and address remediation and capacity building. Based on this commitment, shareholders withdrew the proposal.
Despite the movement that we are seeing from the company, Kraft Heinz remains one of 106 companies whom ICCR members and allies are engaging on their weak human rights policy implementation. ICCR’s Investor Alliance for Human Rights reached out to those 106 companies, including others engaged by SGI members: Kohl’s, Macy’s, Phillips 66, TJX, and Yum! Brands, about scoring 0 across the human rights due diligence indicators in the Corporate Human Rights Benchmark (CHRB) 2020 Report.
The statement sent to each company explains that “Companies need to know and show their respect for human rights under the UN Guiding Principles for Human Rights, through public disclosure of the implementation and ongoing results of human rights due diligence processes.” Similar to corporate greenwashing, companies often rely on policies, codes of conduct, and traditional audits which have been shown to be insufficient in addressing and remediating human rights impacts.
While it is important for a company to understand their material financial risks, a holistic human rights policy requires understanding of their salient risks. These salient risks focus on the risks to people rather than the financial performance of the company. Implementing a human rights policy and doing the proper due diligence is required for a social license to operate and should not create an internal dilemma. This is about fair and just treatment of people. It is not a question of if this needs to be done; it is a question of why it has not already been done.
A year after retiring to Mount St. Francis in July 2015, the president of our congregation asked if I would facilitate the formation of what came to be the Sisters of St. Francis-Dubuque SRI Working Group. My previous ministry experience was elementary education-administration, adult formation, licensed health practitioner and after-school tutoring in the rural south. Saying ‘yes’ acknowledged that the topic would be interesting and that the ‘working’ part of the label would have me personally engaged in a significantly new arena addressing life’s meaning and purpose.
And so it has! Especially in recent years, as active ownership has effectively increased its voice and influence in the investment arena. Belonging to a faith- and values-based investor coalition, Seventh Generation Interfaith based in Milwaukee, provided education, professional resources, and mentoring in this important work, which for the Dubuque Franciscans, is a way of keeping our congregational mission alive.
One thing I became aware of in those first years was the annual general meeting, the AGM, which a company has for shareholders to weigh in on important company matters. Being a co-owner enabled me to file a shareholder resolution, challenging the company to make improvements in its governance, environmental and social practices. It seemed to be the right thing to do when we had the chance; but at times, it felt a bit intimidating. Recently, that was my experience as a co-filer on a resolution presented at the Tyson Food Inc. annual meeting.
The resolution asked for human rights due diligence in Tyson’s meat packing sites across the country. Iowa has several Tyson sites; one is in Waterloo, where Rath Packing Co. once had a positive reputation and provided a level of economic mobility for Blacks who migrated from the South until it was shut down in 1985. Learning about workers’ conditions during the COVID pandemic in Tyson’s Waterloo plant, where our congregation provided staff at two elementary and a central high school, became a concern and made this an obvious focus of our shareholder action.
When the resolution was made public and the AGM date was nearing, Investor Advocacy for Social Justice (a sister coalition to SGI) began to build awareness among the press and all shareholders who would have a proxy vote on the proposal during the meeting. Reporters from the Des Moines Register and Reuters contacted me for comment, specifically interested in the fact that ‘nuns’ were engaged with a national company; and the Iowa connection because of the negative news that had been previously reported about the Iowa Tyson site and COVID. Their news coverage educated readers about the broad impact of shareholder action. Each request also made me very aware that this experience was not something I anticipated when I agreed to facilitate a group investment effort five years previous!
Was it worth it? Definitely! Yes! Taking the chance to be the voice for marginalized sisters and brothers had to be done. It’s who we are as Dubuque Franciscans. And it stretched me. The support of faith-based and value-based organizations like SGI and IASJ made this possible as an investor. It’s what the world needs right now as one way to reclaim the commitment to the common good and the dignity of the individual person in the economic arena.
We often get questions on deadlines associated with the shareholder resolution process. Because SEC rules can be difficult to read, I have outlined the Shareholder Resolution Timeline. This won’t answer all the questions, but will hopefully make the process a little more digestible.
When companies do not engage with their shareholders on salient ESG issues, or they make insufficient progress, shareholders can resort to filing a resolution to be included in the company’s proxy statement and to be voted on at the company’s next annual general meeting (AGM). While the SEC approved several changes to the 14a(8) shareholder resolution process in the final months of the Trump administration, the timeline did not change.
According to the SEC, a proposal “must be received at the company’s principal executive offices not less than 120 calendar days before the release date of the previous year’s annual meeting proxy statement. Both the release date and the deadline for receiving rule 14a-8 proposals for the next annual meeting should be identified in that proxy statement.” Thankfully, a company’s proxy statement is required to state the deadline for resolution submissions for the following year.
After a proposal is filed, the company has 14 days to ask the proponent to fix any procedural requirements (e.g. proof of ownership, word count) if they are not met. The proponent then has 14 days to resolve those issues. If the proponent does not respond or resolve the issues, the company can appeal to the SEC to exclude the proposal. The company cannot omit the resolution without giving the proponent a chance to resolve the issues, or without an appeal to the SEC.
The company has up to 80 days before its proxy is printed to challenge the proposal via a no-action request to the SEC. The company is required to provide a copy of the no-action submission to the proponents and will be published on the SEC website. After a company files a no-action request, such as substantial implementation or micro management (full list for potential exclusion, here), the proponent can appeal this challenge to the SEC. The SEC’s timeline on this decision is usually driven by the company’s proxy printing; however, the SEC does not have to wait for the proponent’s appeal, and can make a decision at any time. Because of this, it is recommended that the proponent inform the SEC on their plans to respond, and submit their appeal to the SEC as soon as possible, generally within 30 days of receiving the no-action.The SEC no longer has to respond to the company’s no-action request in writing, but rather can post their advice to their website on whether the proposal can be omitted from the company’s proxy.
Oftentimes after a no-action request is submitted by the company, the proponents decide to withdraw the proposal, usually after they reach a mutual agreement with the company. While the proponent can withdraw their proposal any time up until the day of the shareholder meeting, we generally try to withdraw before the company’s proxy statement is printed. It is sometimes preferable to withdraw the proposal before the SEC sides with the company allowing it to omit the proposal, if the company’s no action arguments are compelling.
If the proponent does not withdraw the proposal, and the SEC does not rule in favor of the company to omit it from the proxy statement, the company has to send a management statement to the proponent. The statement, typically referred to as the company’s opposition statement, must be sent at least 30 days before the proxy is printed, recommending shareholders vote either for or against the shareholder proposal. If the statement of opposition makes any arguments that are false or misleading, the proponent can ask the company to make the appropriate changes. If the company makes any flagrant errors, the proponent can write to the SEC to challenge the statement, though the SEC does not have to respond to this challenge.
In preparation of the annual general meeting (AGM), the proponent has a few opportunities to “build the vote” by informing other shareholders why they should vote in favor of the proposal.
The proponent can write and publish a Proxy Memo, detailing more information on why they filed the resolution, and why voting for the resolution is necessary. This memo is usually published on the proponent’s website and distributed to other shareholders through partner organizations.
The proponent can also file an Exempt Solicitation. Similar to a proxy memo, it expands on the proposal and argues why other shareholders should vote in favor of the proposal. This document must be reformatted by a third party to be uploaded to the SEC Electronic Data Gathering, Analysis, and Retrieval (EDGAR). It is then distributed to all subscribers to SEC filings for that company and is publicly available. This generally reaches more shareholders, and asset management firms.
Leading up to the AGM, to continue to “build the vote,” proponents can also reach out to proxy service companies or firms that prepare company reports and provide proxy voting service on behalf of shareholders. The proponent can also reach out to large asset managers to inform them of their arguments for voting in favor of the resolution, and can promote their proposal through the media to build awareness and support.
After the proposal is voted on at the AGM, the company is required to publish the results of the vote, and other matters discussed, in an 8-K SEC filing within 4 days of the AGM. These filings can be found on the company’s website.
The timeline can be complicated, so you may want to refer to the table below.
120 Days from release date of previous years company proxy
Deadline to submit shareholder proposal
14 Days (after submission)
Company exclusion based on eligibility or requirements
14 Days (after exclusion)
Proponent can resubmit proposal fixing the issues
80 Days (before proxy is printed)
Company challenge to SEC with a no-action request
ASAP (after No Action request)
Proponent to challenge or appeal the no-action request
Any Time after No Action request
SEC makes a decision on no-action request
Any Time before AGM
Shareholder can withdraw proposal
30 Days before proxy is printed
Company issues Management Statement recommending how to vote on the proposal, to be printed in the proxy
Any Time (usually 6 weeks) before AGM
Proponent published or files Proxy Memo / Exempt Solicitation
~30 days before AGM
Proponent “builds vote” with Proxy Service companies
Today, the SEC approved in a 3-2 party-line vote new rules that severely restrict shareholders’ access to the corporate proxy by limiting the filing of resolutions. These new rules are a consequence of lobbying by powerful industry trade associations that have sought to limit shareholder engagement with corporations on critical environmental, social, and governance issues.
The shareholder resolution process, governed by the SEC’s Rule 14a-8, has been effective for decades and has allowed smaller shareholders who had held at least $2,000 of shares for over one year to file proposals asking companies to consider non-binding proposals that may raise questions of environmental and social impacts of corporate policies and practices, or governance best practices.
Today’s new rules will significantly limit investors’ ability to submit these proposals. The new rules raise the thresholds of ownership both in terms of the number of shares and length of time they must be held. Under the new rule, new purchasers of stock must hold $25,000 in shares for at least a year, or hold $2,000 in shares for at least three years.
As well, the new rules make it much more difficult to refile a proposal that has been voted on. The prior rule required 3% support on a first-year vote, 6% on a second vote, and 10% on a third vote to keep a proposal before a company’s shareholders. Now resubmission will require 5% on a first vote, 15% on a second vote and 25% on a third vote. Emerging issues will be much more difficult to bring to the proxy.
SGI’s executive director, Frank Sherman said, “The choice to approve the new rule aims to fix something that is not broken. A half-century of evidence shows that shareholders have an important voice that companies need to hear. Pioneers like Fr. Mike Crosby have helped companies pay attention to environmental, social, and governance concerns that they were missing. To the detriment of U.S. companies, this rule restricts that important voice.”
In a press release, ICCR executive director, Josh Zinner said: “The new rule guts the existing shareholder proposal process, which has long served as a cost-effective way for shareholders to communicate their priorities and concerns to management, with little economic analysis supporting the needs for these substantial changes. The new rules appear to be based on a wholly unsupported assumption that shareholder proposals are simply a burden to companies with no benefits for companies or non-proponent investors when there is 50 years of evidence to the contrary.”
Over many decades, the shareholder proposal process has served as an efficient way for corporate management and boards to gain a better understanding of shareholder priorities and concerns, particularly those of longer-term shareholders concerned about the long-term value of the companies that they own. Engagement by shareholders has served as a crucial “early warning system” for companies to identify emerging risks and there are hundreds of examples of companies changing their policies and practices in light of productive engagement with shareowners.
Each year, ICCR and Ceres offer webinars that highlight resolutions filed by members. These webinars provide excellent guidance to institutional investors and individual investors concerning shareholder proposals in the coming proxy season. We cannot recommend highly enough your participation in both webinars.
ICCR’s 2020 Proxy Resolutions & Voting Guide Overview. ICCR member resolutions reflect some of the most hotly-debated themes in the national discourse, from the failure of energy companies to meaningfully respond to the climate crisis threatening our planet, to the role of corporations in perpetuating civil and human rights abuses through technology products, and the unrelenting rise in the cost of U.S. healthcare. Register here. (Thu, Feb 27, 10:30 a.m. – 11:30 a.m. Central)(UPDATE: 2020 Proxy Guide is here. Slides and recording are here. )
Business Case to Vote For 2020 Climate-Related Shareholder Proposals. An annual webinar presenting key climate-related shareholder proposals for the 2020 proxy season, and reasons why you should vote for them. Hosted by the Ceres Investor Network on Climate Risk and Sustainability. Register here. (Thu, Mar 12, 11:00 a.m. – 12:30 p.m. Central)
Even if you cannot attend live, registration means that you will be sent a link to the slides and recording of the webinar. In other words, even in the event that you have a schedule conflict, it can be valuable to register and watch the webinar at another time. Please, register for these webinars!
The Province of Saint Joseph of the Capuchin Order, whose Corporate Responsibility agent I am, filed a shareholder resolution in November 2018 asking that Boeing disclose all its political and lobbying spending, as well as its membership in industry and trade associations. We picked up the mantle in the sixth year of this ask, noting that there was a slight but steady upward tick in support of the resolution, reaching 24% in the 2018 annual general shareholders’ meeting. I registered for the event, held 29 April at the Field Museum in Chicago, Boeing’s corporate HQ.
I took the
train from Kenosha. I met my company minder, from their capital arm, and had
some snacks, connecting with Sisters Barbara Jennings and Marge Clark before
taking my seat in an auditorium that likely has seen more class trips than
Timothy Leary in his professorial days.
Here are the
highlights (as I see it) from my two-minute statement, with thanks to John
Keenan of AFSCME for his expert research and prep:
Mark Hanna, a turn-of-the-20th century Senator from Ohio, said, “There are two things that are important in politics. The first is money and I can’t remember what the second one is.” We move this resolution not because we are naïve but because we are not. And because we know that companies with a high reputational rank perform better financially than lower-ranked companies. Our company is in a legal and reputational crisis which underscores the need to embrace accountability and to be fully transparent with shareholders, including through disclosure of its lobbying activity. Fellow shareholders, this is not the time to support this resolution; members of the board, this is not the time to implement this resolution. This is past the time to vote in support of and to implement this resolution. We urge shareholders to vote FOR this proposal. Thank you.
I was too nervous to look at the clock, but I prepped and I am pretty sure I made it within the two-minute mark. The resolution received 32.6% of the vote. My sisters in the movement offered congratulations and helped me frame the result – that this means the resolution could be re-introduced next year. Our own Frank Sherman (ED of Seventh Generation), in a post-AGM briefing, explained what I knew only in theory but was now feeling in my bones: that mutual fund managers, who hold immense numbers of shares and thereby voting rights, rarely, almost never, vote against the recommendations of management. And Boeing management urged a NO not against our resolution, against the resolution separating the CEO from the Chairman of the Board of Directors, and against an ask to separate out the impact of share buy-backs from the movement of the stock price, which feeds into and distorts compensation plans. None tracked much more or less than the St. Joseph resolution. But my fellow activists said we ought to celebrate that 8% jump, and so I do, with you. The CEO struck me as well-scripted and immovable – qualities contrary to Gospel movements. There was a serious and challenging question about the processes and values that informed the rollout of the 737 MAX series. And again – a highly scripted and immovable response. There is more to come, to be sure.
One more free muffin, then back to the street where the recently liberated ice cap was still pouring down. I met some protesters on the sidewalk and we talked and commiserated, then a kind soul from the north side dropped me at Union Station, and back to Milwaukee. What do I carry with me? As follows: an AGM is much like a summit, or a pre-Pope Francis synod: the heavy lifting and the grunt work comes before the switching on of the mics and the lights and the summoning of the slides. And thanks to the work of ICCR, Seventh Generation, our co-filers and collaborators, there was much lifting and there was much grunting and the prep work, including filing an exempt solicitation, bore fruit. I stood on the shoulders of gentle giants.
Today, we hosted our latest webinar for member education on the “Shareholder Resolution Process.” ICCR’s Guide to Filing Shareholder Resolutions is a great tool. We are grateful that Tim Smith of Walden Asset Management and Pat Miguel Tomaino of Zevin Asset Management were able to join us. Their input was a great contribution. Without further ado, here is the video: