The U.S. Securities and Exchange Commission has proposed amendments to the proxy solicitation rules, directly targeting proxy advisory firms (Release No. 34‑87457). Consistent with the updated interpretative guidance the SEC put out on Aug. 21, 2019 (and described in our prior alert), the rules proposed on Nov. 5, 2019, would codify the SEC’s recent interpretation that voting advice put out by proxy advisory firms are “solicitations” subject to the antifraud rules, and add additional conditions that must be met in order for proxy advisory firms to rely on the filing exemptions that have historically been available to them. If adopted, the proposed rules will require additional conflict of interest disclosure by proxy advisory firms in their vote recommendation materials, give subject companies the opportunity to review and comment on proxy advisory firms’ recommendations prior to publication and potentially require the proxy advisory firm to include a hyperlink to a response statement from the company with such recommendations.
Below is a detailed review of the proposal and each of these elements.
The SEC is seeking public comment on the proposals consistent with its normal rulemaking effort, with a standard 60‑day comment period following publication in the Federal Register. The proposed rule includes a proposed transition period that if adopted would effectively mean final rules will not be in effect for the 2020 proxy season (but could be in effect for the 2021 proxy season if adopted reasonably expeditiously).
The SEC is proposing to codify its interpretation, as released in Aug. 2019, that proxy voting advice constitutes a “solicitation” under Rule 14a‑1). The proposed addition to the definition of solicitation Rule 14a‑1(l)(1)(iii) reads:
“(iii) The furnishing of a form of proxy or other communication to security holders under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy, including:
(A) Any proxy voting advice that makes a recommendation to a security holder as to its vote, consent, or authorization on a specific matter for which security holder approval is solicited and that is furnished by a person that markets its expertise as a provider of such proxy voting advice, separately from other forms of investment advice and sells such proxy voting advice for a fee.”
The SEC has stated that its goal with this rule is to clarify that the terms “solicit” and “solicitation” include any proxy voting advice that makes a recommendation to a shareholder as to its vote, consent or authorization on a specific matter for which shareholder approval is solicited, and that is furnished by a person who markets its expertise as a provider of such advice, separately from other forms of investment advice, and sells such advice for a fee. This clearly identifies proxy advisory firms, such as Institutional Shareholder Services and Glass Lewis, as making solicitations.
The proposed rule carefully argues that the term “solicitation” has always been interpreted broadly, and likely has generally encompassed the activities of proxy advisory firms as “communications to securities holders under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy.” The SEC identified several factors under the existing framework to support this, including their inclusions of “vote recommendations,” advertising of their expertise in analyzing matters subject to a proxy vote, receiving a fee for their analysis and providing their recommendations shortly prior to votes.
Perhaps with an eye on the lawsuit filed by ISS challenging its August interpretation, the SEC did proactively respond to one potential concern to the proposed addition, namely that it could include any advice given by any third-party adviser. The SEC also proposed adding an amendment to Rule 14a‑1(l)(2), which lists exceptions to the definition of solicitation, to also exclude “the furnishing of any proxy voting advice by a person who furnishes such advice only in response to an unprompted request.” With this carveout, the addition becomes more starkly limited to just the proxy advisory firms that provide proxy voting advice as a central part of its business.
In the SEC’s request for comments, its questions included (i) whether to codify the interpretation, (ii) whether the unprompted requests requirement is satisfactory, (iii) whether the codification may unintentionally sweep in communications from other parties, such as investment advisers, that should not fall within the definition of “solicitation,” and (iv) whether it should be expanded to include other activities.
The SEC also proposed amendments to Rule 14a‑2(b), which provides an exemption to the filing requirements for certain solicitations. To the extent that advice given by proxy voting advisory firms has constituted solicitations, these businesses have typically relied upon the exemptions in Rule 14a‑2(b)(1) (exempting solicitations by persons who do not seek the power to act as proxy for a shareholder and do not have a substantial interest in the subject matter of the communication beyond their interest as a shareholder) and Rule 14a‑2(b)(3) (exempting proxy voting advice furnished by an adviser to any other person with whom the adviser has a business relationship) to avoid the filing and information requirements generally required for solicitations under the federal proxy rules. With the proposed codification of the solicitation definition to proxy advisory firms, these businesses will need to rely on these exemptions to avoid SEC filings for every company for which they make a recommendation.
The SEC’s proposed amendments would impose three new conditions that apply solely to persons furnishing proxy voting advice that constitutes a solicitation within the scope of proposed Rule 14a‑1(l)(1)(iii)(A) and that seek to rely on the exemptions in Rules 14a‑2(b)(1) and 14a‑2(b)(3). These conditions are described more fully below, but generally require that proxy voting advice businesses:
The first requirement would impose substantive disclosure obligations on a proxy voting advice business in the materials it provides as part of its voting advice. While acknowledging that Rule 14a‑2(b)(3) does currently require disclosure of significant relationships and material interests, the SEC argues that this standard has generally been met by vague or boilerplate disclosure. The SEC identified several potential conflicts of interest that it believes should be disclosed to better inform voters. These include proxy advisory firms earning fees for advising companies on corporate governance and compensation policies while also being paid to give recommendations on these companies’ upcoming shareholder votes and corporate governance ratings. The proposed new rule would use a principles‑based approach and require proxy voting advice businesses to disclose the following as a condition to using either the Rules 14a‑2(b)(1) or (b)(3) exemptions:
The SEC included several requests for comments regarding the conflict of interest disclosure, including whether (i) proposed Rule 14a‑2(b)(9)(i) is sufficient to elicit appropriate conflicts of interest disclosure from proxy voting advisers, (ii) particular qualitative or quantitative information should be required in such disclosure, (iii) alternative thresholds or language for the proposed conflicts of interests disclosure should be considered (e.g., the “direct or indirect material interest” from Item 404 of Regulation S‑K or the “any substantial interest” standard for covered persons under Item 5 of Schedule 14A).
The second proposed condition for proxy advisory firms seeking to rely on the Rule 14a‑2(b)(1) or (b)(3) exemptions is a requirement to provide companies with an opportunity to review and provide feedback to proxy solicitors in advance of dissemination to clients. Proposed Rule 14a‑2(b)(9)(ii) would require that, subject to certain conditions, the proxy voting advice business provide registrants and certain other soliciting persons covered by its proxy voting advice a limited amount of time to review and provide feedback on the advice before it is disseminated to the business’s clients, with the length of time provided depending on how far in advance of the shareholder meeting the registrant or other soliciting person has filed its definitive proxy statement.
The proposed timing of this review and feedback period is as follows:
This proposed review period would add wrinkles for companies planning the timing of their proxy statements, especially those companies who currently file their proxy statement at least 40 calendar days prior to the shareholder meeting to rely on the “e‑Proxy” rules.
In addition to the review and feedback period, a proxy voting advice business would also be required to provide companies and certain other soliciting persons with a final notice of voting advice, reflecting any updates made following the company’s feedback.
While the proposed rules would not require proxy voting advice businesses to accept any suggested revisions by the registrant, the SEC emphasized that proxy voting advice subject to the Rule 14a‑2(b) exemptions is not exempt from Rule 14a‑9 liability, which prohibits materially misleading misstatements or omissions in proxy solicitations. This further drives home the SEC’s overarching position that proxy advisory firms are potentially liable for the statements made in their voting recommendations, and these firms will need to think carefully in deciding how to incorporate feedback from registrants to their voting recommendations.
The SEC’s requests for comment regarding this notice and review period include (i) whether it is appropriate to provide registrants the opportunity to review such recommendations, (ii) whether the proposed notice and review timeframes are appropriate (and what impact they would have on companies and proxy advisers), and (iii) the extent to which disputes between proxy voting advice businesses and registrants about issues that are factual in nature versus differences of opinion about methodology, assumptions or analytical approaches.
The third condition added to Rule 14a‑2(b)(9) as a condition to the Rules 14a2(b)(1) and 14a‑2(b)(3) exemptions is that a proxy voting advice business must, upon request, include in its proxy voting advice and in any electronic medium used to deliver the advice a hyperlink (or other analogous electronic medium) that leads to the company’s statement about the proxy advisory firm’s voting advice. While this gives the company the ability to have a direct response to the proxy advisory firm’s position, a company will also need to keep in mind that its statement would also constitute a “solicitation” as defined in Rule 14a‑1(l), be subject to the anti‑fraud prohibitions of Rule 14a‑9, and be subject to the filing requirements of Rule 14a‑12, which would necessitate that the response be filed as supplemental proxy materials no later than the date that the proxy voting advice, and thereby the company’s statement, is first published, sent or given to shareholders.
While the proposed rule does not explicitly prohibit “robo‑voting,” or the practice of some proxy advisory firms of providing voter execution services (pre‑population and automatic submission), the SEC did include as a question in its request for comment whether the exemptions in Rules 14a‑2(b)(1) and 14a‑2(b)(3) should be further amended to require automatic submission of votes to be disabled in instances where a company has submitted a response to the voting advice, or whether other conditions should be included requiring client action prior to any automatic voting system.
Rule 14a‑9 prohibits any proxy solicitation from containing false or misleading statements with respect to any material fact at the time and in the light of the circumstances under which the statements are made.
The SEC’s interpretive guidance in Aug. 2019 specifically addressed the application of Rule 14a‑9 to proxy voting advice, stating that: “Any person engaged in a solicitation through proxy voting advice must not make materially false or misleading statements or omit material facts, such as information underlying the basis of its advice or which would affect its analysis and judgments, that would be required to make the advice not misleading. For example, the provider of the proxy voting advice should consider whether, depending on the particular statement, it may need to disclose [certain] types of information to avoid a potential violation of Rule 14a‑9.”
In its proposed rule, the SEC would amend the list of examples provided in the Note to Rule 14a‑9 to specifically include examples applicable to proxy voting advice businesses. The proposed addition would include in the description examples of statements that may be false or misleading depending upon particular facts and circumstances:
“Failure to disclose material information regarding proxy voting advice covered by § 240.14a‑1(l)(1)(iii)(A), such as the proxy voting advice business’s methodology, sources of information, conflicts of interest or use of standards that materially differ from relevant standards or requirements that the Commission sets or approves.”
The proposed rule then provides specific relevant examples of this guidance focused on the last part of this statement—standards that differ from SEC rule requirements. The SEC noted that if a proxy voting advice business were to recommend to vote against an audit committee director on the basis that the director is not independent under the proxy voting advice business’s independence standard for audit committee members, and such standard is more limiting than the SEC’s rules, it may be necessary for the proxy voting advice business to make clear that its recommendation is based on its own different independence standard, rather than the SEC’s standard, in order for such recommendation to be not misleading.
Another example provided was if a proxy advice business were to recommend a vote against a say‑on‑pay vote of a smaller reporting company, disclosure may be required if the rationale for the recommendation is because the smaller reporting company is taking advantage of the reduced compensation disclosure requirements they can choose to use, even if contrary to the proxy advisory business’s recommended disclosure.
If adopted, the SEC has proposed a one‑year transition period after the publication of a final rule in the Federal Register prior to its effectiveness.
These proposed rules provide a clear continuation of the position the SEC staked out in its Aug. 2019, interpretative guidance. If adopted, the rules will create substantially greater requirements for proxy advisory firms, give companies much greater ability to correct mistakes in their recommendations, potentially call out issues with these firms’ methodologies and otherwise provide a more readily accessible rebuttal argument for adverse recommendations. Even while this proposal is pending, given the SEC’s recent interpretative guidance, we recommend that companies begin being more proactive in requesting advance copies of, and reviewing, proxy advisory firm recommendations and reaching out to them to identify any potential factual mistakes or issues, putting the onus on the proxy advisory firms to make the correction, as well as requesting an opportunity to provide a response with the proxy advisory firm recommendation.