Attacking Proxy Advisors

Since the passage of Dodd-Frank, in the summer of 2010, there has been a constant drumbeat from representatives of the corporate community, particularly the Business Roundtable and the U.S. Chamber of Commerce, regarding the need for an increased level of regulatory oversight focused on proxy advisory firms.

One recent example was Tom Quaadman of the U.S. Chamber of Commerce’s Center for Capital Markets Competitiveness (2010): “The center “believes that proxy advisers may fail to reliably represent the investors they purport to serve” by, among other reasons, contending they have an apparent “decision and policy development process that is arbitrary and capricious” and “economic incentives (that) drive one-size-fits all policy which will not produce better informed investors or managed companies.” In that same year, The Business Roundtable issued a press release (12/11/10): “In any event it is critical that the SEC update its rules to promote greater efficiency and transparency in the proxy voting system and enhance the accuracy and integrity of the shareholder vote, including regulation of proxy advisory firms.” (emphasis is mine)

At this point, we need to pause for a reality check: Are the Business Roundtable and the U.S. Chamber of Commerce really calling for new federal regulation? Is the cobra asking for a subsidy for mongoose breeders? It must be a typo!

I must disclose that I was the founder of ISS, the “monopoly” proxy firm, which is the subject of all this brouhaha. I don’t know whether to laugh or to cry when I reflect that it took two years to get a client whom I had not gone to school with and five years to break even. My son disposed of our entire interest about four years ago, so I can approach the subject with economic independence. I do retain passionate intellectual convictions about the utility and integrity of “my baby”. Proxy advisory firms – ISS, Glass Lewis – have the distinction of being the only category of professional service providers, including lawyers and accountants, not to have been suborned by corporate management. There has been not a single allegation of proxy advisory firms either accepting bribes or of acting in bad faith. So there is no back ground of abuse.

Their “crime” is that they represent a threat to the autocracy of the CEO and incumbent boards through advice to shareholders in voting on the particular matters, approved by the SEC, on the proxy for the Annual Meeting. There is no compulsion – legal or implicit – on shareholders to employ the services of proxy advisors firms. This is a business like others; a party purchases a service if it is valuable to him and for no other reason. If he finds defects in the product, he will doubtless not buy it again.

Consider carefully– what is the scope of activity of proxy advisory firms: They give advice as to issues presented on company proxy statements. They have no authority to raise issues on their own; they can only advise on issues raised by others. Proxy advisors have no power to vote, except as expressly authorized by the legal owners.

·         Question: What does ISS do?   Answer: It provides information.

·         Question: To whom does it sell this information? Answer: A cadre of largely sophisticated investors.

·         Question: Is anybody obligated to buy it – in the sense that Moody and S&P’s customers are “mandated” Answer:  No.

So what is the justification for governmental involvement? ISS has no influence over what subjects shareholders present; ISS has no influence on the varying policies of the SEC in interpreting 14(a)(8) of the Exchange Act which is the final factor in determining precisely what issues will be included on the company’s proxy statement. ISS certainly is not “soliciting” proxies in the common sense meaning of those words; they have no stake, no interest, no contingency in how their customer uses the information they provide.

Does it make sense for the SEC to extend its authority in this direction? In its Concept Release (7/22/10) the Commission becomingly summarizes:

“[B]ecause of the breadth of the definition of ‘solicitation’, proxy advisory firms may be subject to our proxy rules because they provide recommendations that are reasonably calculated to result in the procurement, withholding or revocation of a proxy.”

What’s the problem? The real problem is the failure of the customer of the proxy advisory service to fulfill its fiduciary obligations. The ultimate responsibility to take all steps necessary to preserve the value of trust assets (including the proxy) rests on the legal owner. Even in cases where the trustee-owner hires expert consultants, ultimate responsibility lies at his door to make final determination as to the appropriateness of the advice he receives.[1]

Why then is there this persistent effort to hobble the proxy advisors? Why not regulate those parties legally obligated to vote? Instead, the focus is on undermining the advisors: The Shareholder Communications Coalition (a coalition of industry groups including the BRT,  National Investor Relations Institute and others) wrote to the Commission: “The SEC and the Labor Department should consider establishing a more robust due diligence process of institutional investors, so that the proxy voting enjoys a more important role in the investment process and within the fiduciary responsibilities of these investors.”[2]

Hugh Wheelan of Responsible Investor wrote, “In a sign of the firepower being ranged in the US against the proxy firms, a group called The Shareholder Communications Coalition, which represents Business Roundtable, an A-Z of US corporate chief executives with nearly $6 trillion in annual revenues, said SEC rules giving shareholders a voting [sic] on executive pay had made it “even more imperative” that the SEC move to regulate.”[3]

The Coalition presumes SEC involvement and suggests a regulatory precedent:

“As the SEC develops a regulatory framework for proxy advisory firms, one possible avenue for guidance is the current evolving regulation of credit rating agencies, also called NRSROs. A review of the SEC and staff actions with regard to NRSROs during the past years shows that there are numerous and significant analogies with regard to problematic practices and regulatory improvements that should be considered for proxy advisory services”[4].

Has anyone thought about the SEC’s backlog in regulations mandated by Dodd Frank; has any one thought about priorities; has anyone evaluated the relative urgency of this among other proposals? It’s all about money. Since Watergate, our national culture has relentlessly confirmed that many questions can be answered most conclusively by “following the money”.

ISS recommended a no vote at approximately 300 companies, or about 12.5 percent of the Russell 3000 companies in the sampled universe. Although harder to track, Glass Lewis seems to have recommended a negative vote at a somewhat higher percentage of companies, reportedly as high as 17 percent. Importantly, the difference between receiving a favorable recommendation from ISS and an unfavorable one, on average, was a swing of approximately 25 percent of all votes cast. Glass Lewis’ recommendations seemed to produce about an additional 5 percent swing in votes cast.

A second relevant key statistic is that companies receiving a negative proxy advisory recommendation from ISS averaged less than a 70 percent positive shareholder vote, compared to those receiving positive proxy advisory recommendations, which routinely scored 90 percent or higher positive shareholder votes.

The importance of the below 70 percent average positive vote where ISS has issued a negative say-on-pay recommendation becomes startlingly clear when set against ISS’ almost certain voting policies for 2012. As is its custom, ISS has polled the jury of corporate governance opinion and is on the verge of concluding that a less than 70 percent “yes” vote is sufficiently indicative of investors’ lack of confidence in a company’s pay practices to require corrective action by the company. Failing corrective action, the ISS policy in 2012 would be to recommend a withhold vote for directors on the Board’s compensation committee and/or an automatic recommendation to vote “no” at the next annual say-on-pay vote.[5]

And so, our tale comes to a predictable pause – the problem is that ISS has acquired the appearance of power with respect to top executives’ pay. Protecting the absolute power of CEOs to set their own pay seems to be what the coalition is all about.[6]