Posts Tagged ‘Proxy access’

Mr. Market, meet Mr. Regulator

July 21, 2010

Today President Obama signed into law the far-reaching expansion of federal regulation of US banking and capital markets. The overhaul has been brewing in Washington since the financial crisis in 2008 – and the 848-page heft of the Dodd-Frank Wall Street Reform and Consumer Protection Act (PDF here) may have something to do with the two years spent crafting it. The law orders new rules governing banks and investments, creates new agencies, and grants regulatory powers here, there and everywhere.

Supporters say it will protect investors and consumers, prevent abusive and risky behaviors by the bad boys on Wall Street, and avert future financial meltdowns.

President Obama cited eternal benefits for the Act he signed: “The American people will never again be asked to foot the bill for Wall Street’s mistakes [emphasis added].” Never again, of course, is Washington-speak that promises the latest patch in the roof will keep out the rain at least until after the next election. OK, that’s cynical. But financial crises have recurred every few years – over centuries and centuries – despite many previous regulatory fixes. Never again? Well …

For investor relations professionals trying to figure out what this wave of regulation means to us and the financial markets where we work, a few resources:

The New York Times story “Financial Overhaul Signals Shift on Deregulation” (July 15) offers an understandable overview and historical perspective on passage of the overhaul. The Times calls the new law “a catalog of repairs and additions to the rusted infrastructure of a regulatory system that has failed to keep up with the expanding scope and complexity of modern finance.”

A Wall Street Journal piece “Congress Overhauls Your Portfolio” (July 17) takes a “micro” view, looking into how regulatory expansion may affect individual or institutional investors – and companies.

“Several provisions promise to give investors a louder voice in policy-making circles and corporate boardrooms,” the WSJ says. Among the coming attractions: a new Office of the Investor Advocate at SEC to assist retail investors; an Investor Advisory Committee, also at SEC, watching out for investors’ interests; a mandate for the SEC to allow major shareholders access to corporate proxies to nominate directors; and nonbinding “say on pay” votes for shareholders.

Lawyers are weighing in with interpretations, too. On the Harvard Law blog on corporate governance and financial regulation, a partner in the firm of Davis Polk Wardwell LLP says this isn’t just about banks or Wall Street giants:

This legislation will affect every financial institution that operates in this country, many that operate from outside this country and will also have a significant effect on commercial companies. As a result, both financial institutions and commercial companies must now begin to deal with the historic shift in U.S. banking, securities, derivatives, executive compensation, consumer protection and corporate governance that will grow out of the general framework established by the bill. …

By our count, the bill requires 243 rulemakings and 67 studies. … U.S. financial regulators will enter an intense period of rulemaking over the next 6 to 18 months, and market participants will need to make strategic decisions in an environment of regulatory uncertainty.

Davis Polk has made its memorandum available online as a PDF. This 123-page “brief,” as the lawyers like to say, offers a rundown of all of the Dodd-Frank Act’s provisions and their implications for market participants. By scanning the Table of Contents, which hyperlinks into the narrative, you can see where you fit in.

What you can’t see is where all the rulemaking and wrangling will lead. In a few years, all of us probably will be running into financing deals that can’t be done, or reports that must be filed, or language that must be used – thanks to the 2010 Act.

Who knows what unintended consequences – such as increased costs of capital or even the genesis of our next “bubble and bust” cycle – may lurk amid the unknowns of the new law? I’m sure there is good in the Act, but also plenty of uncertainty.

Feel free to share your comments – pro, con or otherwise – by clicking below. And good luck with financial reform as it applies to your business.

© 2010 Johnson Strategic Communications Inc.

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Oh, good (for now anyway)

October 2, 2009

One regulatory reform proposal has slowed down a bit, at least for now: The Securities and Exchange Commission doesn’t plan to vote until early 2010 on a “proxy access” rule, which would help shareholder activists nominate slates for corporate boards, The Wall Street Journal reports today.

Delay of an SEC vote from autumn to January or February means companies wouldn’t have to contend with direct proxy access in the spring 2010 proxy season, the WSJ notes. That would offer a breather for corporate staffs – and maybe some embattled corporate boards – amid a wave of potential new regulation.

Proposed in May, the SEC proxy access rule (if passed) would give shareholders a “right” to have their board nominees listed in a company’s proxy materials -empowering dissidents who might otherwise be shut out. To qualify for submitting board candidates, shareholders would need to hold a minimum of 1% of the shares for larger firms; 3% for mid-sized companies; and 5% for small firms.

SEC Chairman Mary Schapiro favors the proposal, citing the financial crisis as evidence that boards need more accountability.

Business groups like the National Investor Relations Institute oppose the idea. President & CEO Jeff Morgan said in NIRI’s comment letter to the SEC:

Possible side effects of a federal proxy access rule include increased costs to public companies to ensure valid nominations are included on the proxy, an increased influence of activists with narrow economic interests that run counter to that of long-term shareholders, a continued reduction of individual investors’ proxy voting influence and the possibility for decreased board effectiveness.

Morgan favors company-initiated changes in the proxy process, tailored to the varied interests and circumstances of individual companies. (See Morgan’s comments on a range of regulatory issues in his President’s Blog at the NIRI website, or a quick summary in this IR Café post. Broc Romanek gives an overview of comment letters on proxy access in a post at TheCorporateCounsel.net.)

“Proxy access” hasn’t gone away – just slipped a notch in the Washington timetable.

My own opinion: Handing more power to hedge funds, social activists or union pension funds isn’t really a good “fix” for corporate blunders or misdeeds. Activists follow their own political or economic agendas – not necessarily in the best interest of shareholders. Companies that destroy shareholder value, in my opinion, are punished in the market. And their CEOs and boards often share in the downfall.

What’s your opinion? And have you or your top management spoken out?

Quote, unquote – Proxy EXcess

August 26, 2009

Discussion of the Securities and Exchange Commission‘s proposed new “proxy access” rule, aimed at giving activist shareholders an easier shot at electing members or slates to boards of directors, can get pretty arcane.

So I was glad to see, in today’s Wall Street Journal, a good primer on 14a-11 and a succinct and quotable quote that, to me, sums up the proposed change. Says lawyer John Finley of the New York firm Simpson Thacher & Bartlett:

It’s the biggest change relating to corporate governance ever proposed by the SEC. Period. It gives activists the ultimate vehicle to express dissatisfaction with a board, the ability to replace board members at the company’s expense.

Business lobbying against the change is ramping up toward the post-Labor Day push. That, of course, is when politicians return to Washington and harvest season begins for the crop of governmental mischief planted earlier in the year.

Maybe we could rename this particular proposal “Proxy Excess.”

Governance ‘fix’ may be broken

July 16, 2009

Corporate governance “reforms” taking shape in Washington, while aiming to fix the causes of the financial crisis, may in fact add to the problems.

In a memo to clients today, “Corporate Governance in Crisis Times,” the New York law firm Wachtell, Lipton, Rosen & Katz says governance failures of recent years stem from “pressure for short-term performance and quick stock market profits” (greed, you might call it).

But emerging schemes to fix governance, the lawyers note, focus on empowering investors – these might be mutual fund or hedge fund managers – to overrule company managements and boards of directors in matters of corporate policy and direction. Trouble is, at the risk of generalizing, asset managers are the ultimate short-termists. Desire for quick stock market profits is in their job descriptions.

Instead of “reform” like shareholder proxy access, creating a new right to call for sale of a company or dock the CEO’s pay, the lawyers suggest our policy makers should focus on society’s long-term good, including economic growth:

There is no reason to embrace a plethora of ill-conceived federal regulation and legislation that usurps the traditional role of state law and thereby overturn the fundamental legal doctrines that have formed the bedrock of history’s most successful economic system.  The engine of true economic growth will always be the informed business judgment of directors and managers, and not the hunger of short-term oriented shareholders for quick profits.

A long-term focus would mean encouraging boards and CEOs to pursue strategies for sustainable growth. Empowering boards of directors rather than arming union pension funds or special-situation hedge fund managers. Freeing rather than tying down managements. Designing incentives rather than Damoclean swords.

Lawmakers, regulators and courts need to remember that allowing companies to pursue long-term strategies (lawyers call it the “business judgment rule”) is the path both to shareholder wealth and societal benefits like job creation. Beware of making a fix, they warn, that may break more than it repairs:

Particularly at a time of depressed stock market valuations and the resulting danger of opportunistic attacks to bust up or takeover American companies, directors and managers must remain free to invest in the future and take the long-term view, so as to ensure prosperity for future generations.

These guys are lawyers for big corporations, of course. As a free-market sort, I’m inclined to agree that Washington doesn’t have the best ideas on what will restore business to a healthy growth trend. What’s your opinion?