August 3, 2011

ISS Releases Its "Preliminary 2011 U.S. Postseason Report"

Recently, ISS released its "Preliminary 2011 U.S. Postseason Report," whose key findings include:

- During the first year of advisory votes on executive compensation under Dodd-Frank, investors overwhelmingly endorsed companies' pay programs, providing 91.2% support on average.

- Shareholders voted down management "say on pay" proposals at 37 Russell 3000 companies, or just 1.6% of the total that reported vote results. Most of the failed votes apparently were driven by pay-for-performance concerns.

- "Say on pay" votes spurred greater engagement by companies and prompted some firms to make late changes to their pay practices to win support.

- Investors overwhelmingly supported an annual frequency for future pay votes, even though many companies recommended a triennial frequency.

- Among governance proposals, the biggest story this year was the greater support for board declassification. Shareholder resolutions on this topic averaged 73.5% support, up more than 12% from 2010, and won majority support at 22 large-cap firms.

- Shareholder resolutions on environmental and social issues reached a new high of 20.6% average support. Five proposals received a majority of votes cast, a new record.

- The arrival of "say on pay" contributed to a significant decline in opposition to directors. As of June 30, just 43 directors at Russell 3000 firms had failed to win majority support, down from 87 during the same period in 2010. Poor meeting attendance, the failure to put a poison pill to a shareholder vote, and the failure to implement majority-supported investor proposals were among the reasons that contributed to investor dissent.

Proxy Access: Will Shareholders Submit Shareholder Proposals in 2012?

In the wake of the proxy access court decision, Ted Allen of ISS blogs:

The July 22 federal appeals court ruling that struck down the SEC's marketwide proxy access rule, Rule 14a-11, did not affect the SEC's amendments to Rule 14a-8 that would permit shareholders to resume filing proxy access bylaw proposals. Those amendments were placed on hold by the SEC last October after two business groups brought a legal challenge to Rule 14a-11. At that time, the SEC said the 14a-8 changes were "intertwined" with the marketwide access rule.

If the SEC lifts its stay on its Rule 14a-8 amendments, shareholders will be able to submit access bylaw proposals in 2012. Investors would not face any additional ownership hurdles other than the requirements that already apply to proponents--i.e., owning at least $2,000 in company stock for more than a year.

Several investors said last week they are looking into submitting access proposals next season. Investors could file binding or non-binding resolutions, but some states require higher ownership thresholds for binding bylaw proposals. It appears likely that proponents would seek holding periods and ownership thresholds that are more permissive than Rule 14a-11's requirements of a 3 percent stake for at least three years. Labor funds generally prefer a two-year period, and some activists have argued for a lower threshold (such as 1%) at large-cap firms.

So far, it appears that the activist investor community is undecided about whether to file access proposals in 2012 and how many companies to target. There is a concern that the filing of dozens of access resolutions next season might bolster corporate arguments that the SEC should refrain from adopting a new marketwide access rule and just allow private ordering to work. There also is a concern that low support levels for poorly targeted proposals would be cited by corporate critics as evidence that most shareholders don't want access. Conversely, some activists argue that strong shareholder votes for access in 2012 could help prod the resource-stretched SEC to prepare a revised access rule. If activists do file access proposals next season, it appears that they may focus on a few high-profile companies with well-known governance issues.

Back in 2007, two well-targeted shareholder access proposals did attract broad investor support, winning at least 43 percent approval at UnitedHealth Group and Hewlett-Packard. There also was majority approval for access at Cryo-Cell International, a small-cap firm. However, the SEC, which then had a Republican majority, approved a rule in late 2007 to stop investors from filing access resolutions.

If shareholders bring access resolutions in 2012, no-action challenges by companies would be inevitable. Some companies may seek to exclude investor access proposals (as firms have done in response to special meeting requests) by offering their own management resolutions with greater hurdles to access - such as a 10% (or higher) ownership threshold.

Transcript: "Top IP Pitfalls in Deals: How to Avoid Them"

We have posted the transcript for our recent DealLawyers.com webcast: "Top IP Pitfalls in Deals: How to Avoid Them."

- Broc Romanek