January 12, 2015

Proxy Access: Links to 16 No-Action Requests

More action since I blogged about the spate of companies seeking no-action relief on counterproposal grounds (Rule 14a-8(i)(9)) last Monday. I’ll start with this blog by Michael Levin of “The Activist Investor” about his views on access – and here’s Michael’s letter to NY Times’ Gretchen Morgenson about her column.

Then we have CII sending letters to Whole Foods and the other companies who plan to include their own proposals on the ballot, arguing that they set unreasonably high barriers to shareowner nominations and urging that the “3%/3 years” formula should be the standard. In addition, CII has written this letter to the SEC seeking a different approach from the Staff in processing this type of no-action request.

Here’s a list of the 16 companies that have sought no-action relief on proxy access so far (including links to their no-action requests; also see Ning Chiu’s chart):

1. AES – proof of ownership
2. Apache – 5%/3 years/1 director or 10% of board
3. Arch Coal – 5%/5 years/10% of board
4. Cabot Oil & Gas – 5%/3 years/20% of the board
5. Chipotle – 8%/5 years/1 director or 10%
6. Citigroup – 5%/5 years/1 director
7. Domino’s Pizza – 5%/5 years/20% of board
8. eBay – 5%/4 years/1 director or 15% of board
9. Exelon – 5%/5 years/10% of board
10. FirstMerit – 5%/3 years/20% of board
11. Marathon Oil – 5%/5 years/10% of board
12. Noble Energy – 5%/5 years/1 director or 10% of board
13. Peabody Energy – 7%/5 years/10% of board
14. SBA Communications – 5%/5 years/15% of board
15. Whole Foods – 5%/5 years/10% of board (preliminary proxy statement)
16. YUM! Brands – 5%/4 years/1 director or 10% of board

Dodd-Frank: Technical Corrections Bill Fails to Pass (For Now)

In all my reporting on Congressional activity last week, I forgot to mention that Congress failed to pass the Dodd-Frank corrections bill last week (HR 37). It was due to an oddity of the need for a two-thirds vote needed for passage – normally it just requires a majority vote, but the GOP used a voting procedure for non-controversial measures that uses the higher two-thirds standard and Democrats didn’t vote for the law, as noted in this Bloomberg article. HR 37 would have delayed the Volcker Rule and would have exempted emerging growth companies and small business with revenues under $250 million from XBRL requirements – as well as require the SEC to simplify Regulation S-K. My guess is that a new bill will accomplish these things and pass soon enough…

The SEC has issued a notice to hold an open Commission meeting to propose rules for securities-based swaps on Wednesday (and as noted in this blog, Congress has passed legislation which provides that swap end-users do not have to provide initial and variation margin for uncleared swaps as previously required by Dodd-Frank). But nothing about pay ratio rules being adopted…

Rock Party Weekend: Section 16 Workshop

As you can tell from this 6-second video, our inaugural “Section 16 Workshop” included some play amongst real work. Our 2nd workshop – in San Francisco on June 8th – is nearly sold out. Act fast if you want to attend…

– Broc Romanek