No-action letters provide more insight into “ordinary business” exclusion under Rule 14a-8(i)(7)

On the heels of the release of SLB 14J, Corp Fin has posted a couple of new no-action letters that shed some more light on the “ordinary business” exclusion of Rule 14a-8(i)(7).  As you may recall, in SLB 14J, the staff addressed the nature of the board analysis the staff would find most “helpful” in evaluating a no-action request to exclude a shareholder proposal under Rule 14a-8(i)(7), as well as “micromanagement” as a basis for exclusion under that same Rule.  Most impressive is that, in the response letters, the staff actually includes a sentence or two that provides some insight into the staff’s reasoning.  If you recall, a request for more clarity from the staff was one of the comments raised at the SEC’s proxy roundtable, and the staff appears to have heard.  (See this PubCo post.) Both of the letters were submitted in connection with proposals to Walgreens Boots Alliance.

ISS posts 2019 policy updates

Yesterday, ISS announced updates to its policies for next year.  Like Glass Lewis a month ago, ISS is also—shall we say “unfriendly”— to boards of companies that submit to shareholders a charter or bylaw ratification proposal while excluding, as permitted under SEC rules and staff no-action positions, a conflicting shareholder proposal.  Below are some of the highlights of the ISS updates:

What happened at the SEC’s proxy process roundtable?

At last week’s proxy process roundtable, three panels, each moderated by SEC staff, addressed three topics:

proxy voting mechanics and technology—how can the accuracy, transparency and efficiency of the proxy voting and solicitation system be improved?
shareholder proposals—exploring effective shareholder engagement, experience with the shareholder proposal process, and related rules and SEC guidance
proxy advisory firms—can the role of proxy advisors and their relationship to companies and institutional investors be improved?
The first panel, on proxy plumbing, was characterized by the panelist who began the discussion as “the most boring, least partisan and, honestly, the most important” of the three topics. (But it was surprisingly not boring.)  The last panel, on proxy advisory firms, was characterized by Commissioner Roisman as the “most anticipated,” but the expected fireworks were notably absent—except, perhaps, for the novel take on the subject offered by former Senator Phil Gramm.   Here are the Commissioners’ opening statements: Chair Clayton, Stein and Roisman

Corp Fin Chief Accountant echoes theme of need for Brexit, LIBOR and cybersecurity disclosure

Officials at the SEC all seem to be singing the same tune these days, emphasizing the need to amp up company disclosures regarding Brexit, the LIBOR phase-out and cybersecurity. As reported by the WSJ, Corp Fin Chief Accountant Kyle Moffatt, speaking at the FEI Current Financial Reporting Issues Conference, echoed the earlier informal guidance provided by SEC Chair Jay Clayton, Corp Fin Director William Hinman and Deputy Director Shelley Parratt that the SEC will be looking for enhanced disclosure on these topics where material. (See this PubCo post.)  Given the onslaught of admonitions, companies would be well advised to pay attention.

Vexed over Brexit disclosure

The WSJ is reporting that, in a speech to the FEI Current Financial Reporting Issues Conference in New York, SEC Chair Jay Clayton advised the audience that the SEC is “sharpening its focus on corporate disclosures about the risks associated with the U.K.’s exit from the European Union….‘My personal view is that the potential impact of Brexit has been understated….I would expect companies to be looking at this closely and sharing their views with the investment community.’”  To be sure, in terms of potential disruption, some practitioners have likened the havoc that Brexit could create to the chaos anticipated from the Y2K bug!  But even if that analogy turns out to be a bit too apocalyptic, as we approach 10-K season, companies should consider how Brexit could affect their businesses and whether that impact merits disclosure.

SASB issues sustainability accounting standards for 77 industries

Way back in 2016, the SEC issued a Concept Release requesting comment on an enormous variety of potential changes to Reg S-K, including sustainability. (See this PubCo post.) As reported by BNA, then-Director of Corp Fin, Keith Higgins, advised that the highest proportion of comments received on the Reg S-K Concept Release related to better environmental and social responsibility disclosure. He observed that, of the 360 “unique” comment letters (i.e., non-form letters) received, about 80% “were looking for improved sustainability disclosure.”  The problem, he recognized, was that those types of sustainability disclosures were not necessarily amenable to one-size-fits-all rulemaking.  According to Higgins, “[c]limate change tops the list of issues….” However, he acknowledged, the issues involved in sustainability “cut across 79 different industries and aren’t suited to a constant set of rules….‘Everyone recognizes that one-size-fits-all disclosure is likely not to be so effective in the sustainability area—others recognize the enormity of that task.’”  (See this PubCo post.) Now, independent standard-setting organization SASB, the Sustainability Accounting Standards Board, seems to have come to the rescue, announcing that it has published a series of sustainability accounting standards specifically tailored for 77 industries. According to the SASB Chair, the publication of these standards represents an “important milestone” because they provide “codified, market-based standards for measuring, managing, and reporting on sustainability factors that drive value and affect financial performance.” Will the SEC now take up the challenge of sustainability disclosure?

Low board turnover? Less opportunity for board diversity

Is board stability always a good thing? A new study from consultant Spencer Stuart showed that, in 2018, 428 new directors were elected to boards of companies in the S&P 500, the most new directors since 2004, representing an increase of 8% from 2017.  What’s more, 57% of boards added at least one new director, and 22% appointed more than one new director. However, overall turnover remained “modest.” While these new directors added  “fresh skills, qualifications and perspectives”—and many were women, minorities and/or first-time directors—nevertheless, the study concludes, “progress is mixed.”