Battle for Shareholder Rights Shifts to the SEC

By Frank Sherman

Within the toolkit of a shareholder, the right to propose resolutions for consideration by fellow shareholders is one of the most critical to influence corporate behavior (see SGI blog article posted last year). Further, other tools may be less effective without a robust right to propose resolutions. Many companies find a dialogue preferable to a resolution. Without the risk of a resolution, more companies may choose to forgo dialogues with shareholders. Thus, efforts to restrict shareholder rights are alarming, and those rights are under attack on a number of fronts.

Last year, the House of Representatives threatened this right with passage, along party lines, of the Financial Choice Act (H.R. 10) . The bill would have replaced large parts of the 2010 Dodd–Frank Act and increase the ownership threshold for filing resolutions from $2,000 to 1% of common stock outstanding, and extend the stockholding duration requirement from one year to three years (Harvard Law School Forum). The 1% threshold means that an investor would need about $10 billion in shares to file a resolution with Apple or Amazon and would foreclose the resolution process to all but the largest shareholders. In the Senate, the companion bill (S. 2155) got out of Committee but, fortunately, never made it to the floor.

Another bill aimed to regulate proxy advisory firms like Institutional Shareholder Services and Glass Lewis. As well, the recently proposed bipartisan Senate bill S. 3614 – Corporate Governance Fairness Act (Reuters) is less onerous than H.R. 4015 – Corporate Governance Reform and Transparency Act which passed the House last year (CNBC).

Legislative gridlock means that the battle shifted to the Security and Exchange Commission, who held a Proxy Process Roundtable on Nov 15th. In addition to the shareholder proposal rules, the Roundtable had panels on the proxy voting mechanics and technology and proxy advisory firms.

Investors were well represented in the Roundtable panels by the NYC pension fund, Trillium, CalSTRS, AFL-CIO, and Blackrock. Although opposing views were voiced by the Business Roundtable and the U.S. Chamber of Commerce, investor advocates had a compelling argument. In answer to the Chamber’s argument that the shareholder proposal process was one of the factors driving companies away from IPOs, Brandon Rees (AFL-CIO) noted that “the average public company receives a shareholder proposal only once every 7.7 years, and so it was preposterous to suggest that shareholder proposals were a reason companies avoided going public.” Harvard Law School Forum reported that “most panelists for this topic seemed to view the shareholder proposal system as relatively smooth functioning and didn’t offer that much criticism.”

Given these threats, SGI and some of our members submitted letters to the SEC supporting the current proxy rules as being fair and efficient. 

The topic of proxy process and rules returned to Congress last week when the Senate Banking Committee held a hearing on December 6th. The Chamber again testified that companies and their shareholders have been targeted over social and political issues that are unrelated to and, sometimes, even “at odds with” a public company’s long-term performance. Committee Chair Sen. Michael Crapo (R-ID) seemed to agree, stating “it is time to re-examine the standards for inclusion of these proposals as well as the need for fiduciaries to vote all proxies on all issues in light of the proliferation of environmental, social or political proposals, and the rise of diversified passive funds.” On the other hand, Michael Garland (NYC pension funds) defended shareholder rights and the proxy advisory firms stating “Many of those who are the subject of the proxy analysis do not like to be criticized and receive negative vote recommendations...”

SEC Chairman Jay Clayton amplified these attacks on shareholder rights in a speech at Columbia University on the same day. He indicated that review of the ownership and re-submission thresholds for shareholder proposals will be a priority item for the Commission in 2019.

While some will work to erode the rights of shareholders, we will continue to work with the investor community to protect the voice of shareholders.

Book recommendation: The Shareholder Action Guide

In a new series of posts, SGI will offer reviews and suggestions of books related to our work in shareholder advocacy.

For those who want an inspirational primer about shareholder advocacy, Andrew Behar’s The Shareholder Action Guide: Unleash Your Hidden Powers to Hold Corporations Accountable fits the bill. Replete with anecdotes and advice, coupled with references to on-line resources, this book explains the tools and strategies available to empower shareholders. Further, this handbook may well inspire new activist shareholders to demand corporate accountability.

Andrew Behar

The author leads As You Sow, a nonprofit organization that focuses on environmental and social corporate responsibility. As You Sow focuses on climate change, sustainability, human rights, and environmental health, and it engages, among others, companies like ExxonMobil, Chevron, Southern, FirstEnergy, Duke, Dow, DuPont, Monsanto, HP, Dell, Apple, Proctor & Gamble, and Coca-Cola.

In 15 brief chapters, Behar takes readers through the basics. The first seven chapters include: shareholder responsibilities, how shareholders began to use their power with General Motors in South Africa, defining some limits on shareholder actions, explaining proxy votes, influencing fund managers, and corporate engagements and filing shareholder resolutions. Chapter 8 of The Shareholder Action Guide also tells the story of many campaigns in shareholder advocacy from across the past forty years. It profiles leaders in shareholder advocacy, including a testament to the work of SGI’s founder, the late Fr. Mike Crosby, for his efforts in tobacco. Those involved with SGI will recognize the names of numerous allies referenced in the book, including Tim Smith and Sr. Nora Nash, O.S.F. Subsequent chapters contemporary strategies in shareholder advocacy .

Behar explores how corporations are the most powerful entities on the planet. Sadly, many have had a long record of failing to care for creation, exploiting vulnerable people, and hiding boardroom decision-making. Since, by law, corporations are beholden to their shareholders, some philanthropic trusts, pension funds, and other institutional investors have used shareholder advocacy to press for changes in corporate policy. Behar also underscores the opportunity to engage individual investors, who have largely been silent, mistakenly thinking themselves powerless. The Shareholder Action Guide is designed to inform, inspire, and instruct investors in how to exercise their power to effect meaningful change on critical issues including environmental justice, food sustainability, executive compensation, and worker’s rights. Owners of as little as $2,000 worth of stock in a publicly traded corporation have the power to be heard. This book is a call to action designed to build a movement of active investors. Behar illustrates how investors can stop abdicating their power and act to make a better world.

Congress takes aim at shareholder rights

Frank Sherman, Associate Director Seventh Generation Interfaith

Many of the laws and regulations protecting the environment, consumer and worker rights, immigrants and minorities have been under attack of late. Now Congress is going after investor rights that have benefited investors, companies and society as a whole for nearly 80 years. Proposed legislation would prevent most investors from being able to file shareholder proposals with companies on key issues they want further action on, such as board governance matters, corporate policies or emerging risks like climate change. The shareholder proposal process is a critical tool in Seventh Generation Interfaith members’ ability to influence corporate behavior.

The Business Roundtable and the U.S. Chamber of Commerce have been lobbying for these changes for years. Among other changes, the minimum stock holdings would be increased from $2,000 in shares for one year to 1 percent of the company’s outstanding stock for three years in order to file resolutions. In effect, even the nation’s largest institutional investors, including the nation’s largest public pension funds, would not be able to file shareholder resolutions with companies.“The shareholder proposal language in the bill is clearly an overreach,” said Jonas Kron, Senior Vice President, Trillium Asset Management. “For example, raising the ownership requirement to 1% would leave only 11 investors with enough shares to file shareholder proposals at Wells Fargo. None of those investors have ever filed a shareholder proposal. In the mean time, smaller, but no less important, institutional investors in Wells Fargo have filed strongly supported proposals on a range of very important governance and management issues that should be raised with Wells Fargo management and directors.”

The amendment to the SEC rules, part of a larger bill (the Financial Choice Act, aimed at replacing the Dodd-Frank Act, has been proposed by House Financial Services Chairman Jeb Hensarling (R-Texas).  A hearing on the bill is scheduled for Wednesday, April 26.

Many of the country’s largest investors are registering strong opposition to the legislation.  A recent report published by Ceres in collaboration with ICCR and US SIF: The Forum for Sustainable and Responsible Investment, outlines numerous benefits investors have seen from the shareholder proxy tool, including inclusion of more independent board directors, stronger disclosure on political spending, widespread adoption of international human rights principles and wide-ranging actions to mitigate climate change risks. Last year, investors filed about 1,000 shareholder proposals with companies, including about 500 focused on corporate governance issues and more than 400 focused on environmental and social issues.