The SEC and Investor Suffrage

by Dollars and Sense

Floyd Norris has an article in today's New York Times about a proposed rule-making that the SEC just opened up comment on that "would make it easier for institutional shareholders to propose board candidates to be listed on the proxies that every public company sends to its shareholders." Norris worries about potential mischief that shareholders with ulterior motives could create if the rule-making goes through. But the lack of shareholder democracy is pretty egregious; some kind of reform allowing shareholders to have a say in board elections seems in order.

Below is a message we got a couple of days ago (after the SEC hearing on proxy access) from shareholder democracy proponent Jim McRitchie of CorpGov.net. We've been in touch with one of the other co-filers of the brief mentioned below, Glyn Holton of the Investor Suffrage Movement, and we hope to be covering this issue in the pages of Dollars & Sense very soon. —cs

[From James McRitchie:] This morning, the SEC held a hearing on proxy access. By a three to two vote, Commissioners voted for proxy access. Democracy in corporate governance will dramatically improve with our right to nominate and elect directors, even if limited to 25% of the board. Directors may actually begin to feel dependent on the will of shareowners.

While waiting to see the actual language of the rule proposal, please take a few minutes to read and submit comments on a rulemaking petition that a group of ten filed with the SEC on Friday, May 15th, to amend Rule 14a-4(b)(1). The petition seeks to correct a problem brought to our attention by John Chevedden. See petition File 4-583. Send comments to rule-comments@sec.gov with "File 4-583" in the subject line. And please let others in your network know of the petition.

The problem is that when retail shareowners vote but leave items on their proxy blank, those items are routinely voted by their bank or broker as the subject company's soliciting committee recommends. Current SEC rules grant them discretion to do so. As shareowners who believe in democracy, we have filed suggested amendments to take away that discretionary authority to change blank votes, or non-votes, as they might be termed. We believe that when voting fields are left blank on the proxy by the shareowner, they should be counted as abstentions.

This problem is not the same as "broker voting," which has already been repealed on "non-routine" matters and, we hope, will soon be repealed for so-called "routine" matters, such as the election of directors. For example, even though "broker voting" has been repealed for shareowner resolutions, if a shareowner votes one item on their proxy and leaves shareowner resolutions blank, unvoted, those blank votes are routinely changed to be voted as recommended by the company's soliciting committee.

See two examples. At Interface, I voted only to abstain on ratification of the auditors. Yet, you can see ProxyVote automatically fills in my blank votes with votes as recommended by the soliciting committee. A second example, at Staples, shows much the same. You can see blank votes that are changed also include the shareowner proposal to reincorporate to North Dakota, even though such proposals are not considered routine and are not subject to "broker voting." (example attached below)

Just as broker votes should be eliminated so that votes counted reflect the true sentiment of shareowners, the practice of converting blank votes to votes for management should also end.

In our petition, we also highlight a secondary concern. When shareowners utilizing the ProxyVoteplatform of Broadridge vote at least one item and leave others blank, the subsequent screen warns them that their blank votes well be voted as recommended by the soliciting committee. This provides an opportunity to the shareowner to change their blank vote before final submission, if they don't want it to be voted as recommended.

Of course, if we are going to have a system that allows the votes of shareowners to be changed, it is salutary of Broadridge to provide advanced notice. We applaud them for that effort. However, we note that it may fall short of what the SEC requires. Rule 14a-4(b)(1) requires that when a choice is not specified by the security holder, a proxy may confer discretionary authority "provided that the form of proxy states in bold-face type how it is intended to vote the shares represented by the proxy in each such case." (my emphasis)

Broadridge says that shareowners using ProxyVote are communicating "voting instructions" to their bank/broker. They are not voting a proxy. Since Rule 14a-4(b)(1) pertains to "forms of proxy," not the "voting instruction form," there is no violation. However, subdivision (1) refers to the "person solicited" and the need to afford them opportunity to specify their choices. The person being solicited is the beneficial shareowner. Therefore, unless the subdivision applies both to a voting instruction and a proxy, the requirements to indicate with bold-face type how each field left blank will be voted loses meaning.

However the SEC interprets the current rule, we hope they move forward with a rulemaking to remove discretion to change blank votes and to require blank votes to be counted as abstentions. While the petition is being considered for action, we hope Broadridge will modify its system to clearly indicate in red bold-face type how votes will be cast for each item where a blank vote will be changed.

A few months ago, The Millstein Center for Corporate Governance and Performance released Voting Integrity: Practices for Investors and the Global Proxy Advisory Industry. While this important briefing was primarily focused at the proxy process for institutional investors, the need for integrity applies equally to the votes of retail investors:

At the heart of any discussion about proxy voting is the humble shareholder ballot. In its simplest interpretation, the ballot is arguably the principal method by which a company's shareholders can, while remaining investors in the company, affect its governance, communicate preferences and signal confidence or lack of confidence in its management and oversight. The ballot is the shareholder's voice at the boardroom table. Shareholders can elect directors (and, in several jurisdictions, have the right to remove them), register approval of transactions, supply advisory opinions and (increasingly) authorize executive pay packages, all through the medium of the ballot. It is one of the most basic and important tools in the shareholder's toolbox... Safeguarding the intention of a voting instruction is of paramount importance to system integrity.

Co-filing with James McRitchie, Publisher of CorpGov.net, are:

• John Chevedden, Rule 14a-8 proposal proponent since 1996
  
• Glyn Holton, Executive Director, United States Proxy Exchange
  
• Mark Latham, Ph.D., VoterMedia.org
  
• Eric M. Jackson, Ph.D., Managing Member, Ironfire Capital LLC
  
• James P. Hawley, Ph.D., Professor and Co-Director, Elfenworks Center for the Study of Fiduciary Capitalism, Saint Mary's College of California
  
• Andrew Williams, Ph.D., Professor and Co-Director, Elfenworks Center for the Study of Fiduciary Capitalism, Saint Mary's College of California
  
• Andrew Eggers, President, Proxy Democracy
  
• Bradley Coleman and Erez Maharshak, Proxy Democracy
  

Again, please submit comments on the petition to rule-comments@sec.gov with "File 4-583" in the subject line.

Labels: Chris Sturr, Glyn Holton, investor suffrage, James McRitchie, SEC, shareholder democracy

 

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5/22/2009 05:00:00 PM