November 5, 2019

Glass Lewis Issues ’20 Voting Guidelines

Glass Lewis has posted its 2020 Voting Guidelines. A summary of the changes appears on page 1 of the guidelines & on Glass Lewis’s blog, and we’ll be posting memos in our “Proxy Advisors” Practice Area. Here are some of the highlights:

Excluded Shareholder Proposals. Some of the most notable policy changes respond to the SEC’s recent guidance on the shareholder proposal no-action process. Glass Lewis now says that if the SEC declines to state a view on whether a shareholder proposal should be excluded, then it will likely recommend that shareholders vote against the members of the governance committee unless that proposal appears in the proxy statement.

If the SEC verbally permits a company to exclude a proposal and doesn’t provide a written record, Glass Lewis says that the company will have to provide some disclosure about the no-action position. Companies that don’t provide this disclosure will also face a negative recommendation on the members of their governance committee.

Committee Performance & Disclosure.  Several revisions relate to the codification of circumstances under which Glass Lewis will recommend against chairs of the audit, governance, and comp committees. Audit committee chairs will earn a thumbs down if fees paid to the company’s external auditor aren’t disclosed.

Governance committee chairs will get dinged when either director attendance information isn’t disclosed or when a director attended less than 75% of board and committee meetings and the proxy doesn’t provide enough details as to why. Comp committee chairs will earn Glass Lewis’s wrath if they adopt a time period for holding a “say-on-pay” vote that differs from the one approved by shareholders.

Exclusive Forum Bylaws & Supermajority Provisions. Glass Lewis has tweaked its guidelines to clarify that it may not recommend against the governance committee chair in situations where it determines that an exclusive forum bylaw has been “narrowly crafted to suit the unique circumstances facing the company.” Glass Lewis has also codified its position that it will recommend voting against proposals to eliminate supermajority provisions at controlled companies, because these protect minority shareholders.

Gender Pay Equity. Glass Lewis clarified that it will review on a case-by-case basis proposals that request that companies disclose their median gender pay ratios. It will generally vote against those proposals if the company has provided sufficient information concerning its diversity initiatives & concerning how it is ensuring that women and men are paid equally for equal work.

Other changes include defining situations where Glass Lewis reports on post-fiscal year end compensation decisions & setting expectations for disclosure of mid-year adjustments to short-term incentive plans. Glass Lewis also says that it has “enhanced” its discussion of excessively broad “change in control” provisions in employment agreements.

Whistleblowers: SEC Enforcement Says Protections Aren’t Just for Employees

Typically, when we think about whistleblowers, most of us probably picture disgruntled current or former company employees.  Yesterday, the SEC’s Division of Enforcement provided a reminder that while that’s often the case, others can qualify as whistleblowers too.  As this excerpt from the SEC’s press release announcing enforcement proceedings against Collector’s Café & its CEO demonstrates, investors are also eligible for protection as whistleblowers:

The Securities and Exchange Commission today filed an amended complaint against online auction portal Collectors Café and its CEO Mykalai Kontilai to add allegations that they unlawfully sought to prohibit their investors from reporting misconduct to the SEC and other governmental agencies. The SEC previously charged Collectors Café and Kontilai with a fraudulent $23 million securities offering based on false statements to investors, and alleged that Kontilai misappropriated over $6 million of investor proceeds.

The SEC had previously brought securities fraud charges against the defendants, and its amended complaint alleges that the defendants tried to resolve investor allegations of wrongdoing by conditioning the return of their money on agreements barring investors from dropping a dime on them to law enforcement, including the SEC.

The SEC’s complaint alleges that this conduct violated the SEC’s whistleblower protection rules – and just to make absolutely certain that they waived a red flag in front of the SEC bull, the complaint alleges that these defendants sued two investors that it believed breached one of these agreements.

Non-GAAP:  Is It a Non-GAAP Number or Something Else?

Here’s a really helpful SEC Institute blog that reviews the sometimes murky distinction between non-GAAP financial measures subject to Reg G’s requirements & operating measures that are outside the scope of the rule.  It also provides some guidance as to how to go about determining what category a particular metric falls into.

John Jenkins