And it may even help— to some extent. A number of companies received whopping bills in the last proxy season or two for proxy distribution costs—much bigger than normal. How did that happen? As discussed on thecorporatecounsel.net blog, these types of increases have been attributed to “the proliferation of small accounts through no-fee trading platforms.” Many retail traders now hold very small numbers of shares of a large number of stocks, some as a result of recent opportunities to buy fractions or “slices” of shares that ultimately add up to one or more whole shares. And, in a number of cases, the retail traders didn’t even buy the shares; they were “gifted” by retail brokers as rewards for opening a new account or doing some other good deed for the benefit of the broker. It can all add up to surprisingly big charges for proxy distribution costs. But now there may be a bit of relief available—the SEC has just approved an NYSE proposal to “prohibit member organizations from seeking reimbursement, in certain circumstances, from issuers for forwarding proxy and other materials to beneficial owners.” “Certain circumstances” refers to free promotional shares awarded to account holders by brokerages. Notably, the blog raises the good question of how the exclusion will be enforceable in practice.
The SEC’s whistleblower program provides for awards in amounts between 10% and 30% of the monetary sanctions collected in an SEC action based on the whistleblower’s original information. The program, which has been in place for more than ten years, is widely acknowledged to have been a resounding success. In September 2020, the SEC adopted a number of amendments to the whistleblower rules, some of which were quite controversial. In early August, SEC Chair Gary Gensler issued a statement indicating that he had directed the SEC staff to revisit the whistleblower rules, in particular, two of the amendments that had been adopted in 2020. (See this PubCo post.) Gensler observed that concerns have been raised, including by whistleblowers as well as by Commissioners Allison Herren Lee and Caroline Crenshaw, that those amendments “could discourage whistleblowers from coming forward.” Now, the SEC has issued a policy statement advising how the SEC will proceed in the interim while changes to those rules are under consideration. Commissioners Hester Peirce and Elad Roisman were none too pleased with the SEC’s action here, questioning whether it might be part of a troubling pattern of unwinding actions taken by the last Administration. They made their views known in this statement.
On Friday, the SEC approved Nasdaq’s proposal for new listing rules regarding board diversity and disclosure, along with a proposal to provide free access to a board recruiting service. The new listing rules adopt a “comply or explain” mandate for board diversity for most listed companies and require companies listed on Nasdaq’s U.S. exchange to publicly disclose “consistent, transparent diversity statistics” regarding the composition of their boards in a matrix format. (See this PubCo post.) Nasdaq has now posted a three-page summary of its new board diversity rule, What Nasdaq-listed Companies Should Know.
You probably remember that, late last year, Nasdaq filed with the SEC a proposal for new listing rules regarding board diversity and disclosure, accompanied by a proposal to provide free access to a board recruiting service. The new listing rules would adopt a “comply or explain” mandate for board diversity for most listed companies and require companies listed on Nasdaq’s U.S. exchange to publicly disclose “consistent, transparent diversity statistics” regarding the composition of their boards. In March, after Nasdaq amended its proposal, and in June, the Division of Trading and Markets, pursuant to delegated authority, took actions that had the effect of postponing a decision on the proposal—until now. On Friday afternoon, the SEC approved the two proposals.
It’s worth noting that the minibus budget package passed by the House last week includes a provision intended to put the kibosh on the proxy advisory firm rules that were adopted by the SEC in July 2020. Specifically, the bill provides that “[n]one of the funds made available by this Act may be used to implement the amendments to sections 240.14a-1(l), 240.14a–2, or 240.14a-9 of title 17, Code of Federal Regulations, that were adopted by the Securities and Exchange Commission on July 22, 2020.” Of course, Corp Fin had already put a temporary halt on enforcement of those rules. And unlike prior years, there is no provision in the House bill—yet—that would prohibit the SEC from using any of the funds to finalize rules requiring disclosure of corporate political spending. The bill next goes to the Senate, where, of course, there could be substantial changes.
Alliance Advisors has just released its 2021 proxy season review, a season they characterize as “dynamic,” as investors stepped forward to express their views on a variety of environmental and social topics. At least 34 E&S shareholder proposals won majority support, compared to 21 proposals last year. And over a dozen shareholder proposals on diversity, climate change and political spending won with votes in excess of 80%. There were also some new entries among the shareholder proposals—such as requests for racial audits, access to COVID-19 medicines and say on climate—that received support averaging around 30%, a level that Alliance characterizes as “remarkably” good for first timers. Alliance acknowledges that these results did not come entirely out of the blue, as large asset managers such as BlackRock and Vanguard had previously signaled that they might take steps this season to more closely align their proxy voting records with their advocacy positions.
In remarks yesterday on a webinar, “Climate and Global Financial Markets,” from Principles for Responsible Investment, SEC Chair Gary Gensler offered us some clues about what to expect from the SEC’s anticipated climate disclosure requirements by analogizing to the Olympics: there are rules to measure performance and the “scoring system is both quantitative and qualitative,” which “brings comparability to evaluating” performance among athletes and over time. In addition, as with the components of public company reporting generally, the types of sports included in the Olympics change over time—there was no Olympic women’s surfing competition 100 years ago, but interests and demand have changed. So with disclosure requirements, which have gradually expanded to include disclosure about management, MD&A, compensation and risk factors, some hotly debated topics in their time. Now, investors are demanding disclosure about climate risk, and it’s time for the SEC to “take the baton.” To that end, Gensler has asked the SEC staff to “develop a mandatory climate risk disclosure rule proposal for the Commission’s consideration by the end of the year.” In his remarks, he outlines some of the concepts that are being considered for inclusion in that proposal.
Although BlackRock, which manages assets valued at over $9 trillion, and its CEO, Laurence Fink, have long played an outsized role in promoting corporate sustainability and social responsibility, BlackRock has also long been a target for protests by activists. As reported by Bloomberg, “[e]nvironmental advocates in cities including New York, Miami, San Francisco, London and Zurich targeted BlackRock for a wave of protests in mid-April, holding up images of giant eyeballs to signal that ‘all eyes’ were on BlackRock’s voting decisions.” Of course, protests by climate activists outside of the company’s offices are nothing new. There’s even a global network of NGOs, social movements, grassroots groups and financial advocates called “BlackRock’s Big Problem,” which pressures BlackRock to “rapidly align [its] business practices with a climate-safe world.” Why this singular outrage at BlackRock? Perhaps because, as reflected in press reports like this one in the NYT, activists have reacted to the appearance of stark inconsistencies between the company’s advocacy positions and its proxy voting record: BlackRock has historically conducted extensive engagement with companies but, in the end, voted with management much more often than activists preferred. For example, in the first quarter of 2020, the company supported less than 10% of environmental and social shareholder proposals and opposed three environmental proposals. BlackRock has just released its Investment Stewardship Report for the 2020-2021 proxy voting year (July 1, 2020 to June 30, 2021). What a difference a year makes.
On Tuesday, the Brookings Institution held a panel discussion regarding the role that the SEC should play in ESG investing. In describing the event, Brookings said that ESG issues “continue to climb in importance for many investors and policy makers. What role should public policy and financial regulation play in response to ESG concerns? These questions are of particular importance for the [SEC] tasked with protecting America’s capital markets and American investors.” You might have assumed that Brookings would have invited as the speaker one of the SEC’s fervent advocates for more prescriptive ESG disclosure regulation, such as Commissioner Allison Herren Lee. But instead, Brookings invited the contrarian Commissioner Hester Peirce as the SEC representative. As an opponent of the SEC’s venturing into the mandatory ESG metrics disclosure business, Peirce came prepared to engage, armed with a voluminous speech consisting of 10 theses, footnoted to the hilt. Recognizing that “whether and how we will move toward a more prescriptive ESG disclosure framework” is now front and center on the SEC’s current agenda, Peirce offered ten theses “without much sugar-coating” in the hopes of catalyzing “a textured conversation about the complexities and consequences of a potential ESG rulemaking.”