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Last week, the US Department of Justice announced withdrawal of a 1987 letter to ISS that had indicated that – at the time of the letter – the DOJ had no current intention to bring action under the antitrust laws to enjoin the establishment and operation of ISS. The announcement says that circumstances have changed. Here’s an excerpt:

ISS and Glass, Lewis & Co. LLC (“Glass Lewis”), control more than 90 percent of the proxy advisory market and their clients’ holdings represent a significant ownership stake in the United States’ largest publicly traded companies. As a result of this concentration of market power, ISS and Glass Lewis have tremendous influence in corporate governance matters and, based on their market dominance, shape the policies of America’s largest companies.

At the time that the Antitrust Division issued its 1987 BRL to ISS, proxy advising as an industry was in its infancy. The Letter noted that, based on the understanding that ISS “will offer advice only on matters relating to the exercise of voting rights on issues of corporate governance, and that ISS will not provide advice or engage in discussions with respect to the corporate operations or business activities,” the Department of Justice “ha[d] no current intention to bring action under the antitrust laws to enjoin the establishment and operation of ISS.” The 1987 BRL did not address corporate consulting services, which ISS now offers in connection with proxy voting services. ISS’s business model is now in direct conflict with the language in the Letter. ISS is, in fact, now providing advice with respect to corporate operations. In so doing, ISS wields enormous influence over corporate governance issues and policies through its proxy voting services.

The letter continues:

Indeed, the representation at the time that ISS would not “provide or engage in discussions with respect to the corporate operations or business activities” may run contrary to ISS’s business model today. The 1987 BRL expressly qualified the Antitrust Division’s enforcement position to exclude services directed at corporate operations or activities. The Department of Justice has since clarified that while antitrust safe harbors for passive investment protect most beneficial corporate governance advocacy, they do not protect the use of commonly held stock in competitors to encourage market-wide reductions in output or other anticompetitive conduct.[1]

To be clear, proxy advising is not inherently problematic and the lawful exercise of voting rights pursuant to a proxy advisor recommendation does not raise competition concerns. The Antitrust Division is withdrawing its 1987 BRL because the Letter does not reflect ISS’s current business practices or the Antitrust Division’s view of those practices. Moreover, the concentration of market power in the proxy advisory market raises significant competition concerns.

It appears that while proxy advisors may be winning a battle right now at the state level, they haven’t won the war. And broadly speaking, the “war” over how companies are influenced is still being waged on multiple fronts – including against institutional investors that may join topic-based coalitions to urge companies to act in certain ways. The “clarification” that the DOJ cited in its announcement was provided in connection with the Texas v. BlackRock litigation, which Vanguard settled earlier this year but continues against the other defendants.

– Liz Dunshee