Policy and Legal

Activist shareholders from across the ideological spectrum have increasingly influenced public companies’ proxy ballots, and the Securities and Exchange Commission has unlawfully become their willing partner. That’s why the NAM has moved to intervene in a court case on the matter.

What’s going on: The NAM yesterday filed a motion to intervene in a case challenging the SEC’s authority to compel manufacturers to use their proxy ballots to speak about divisive social and political issues that are unrelated to a company’s business or long-term value.

• If granted intervenor status, the NAM will argue that the SEC’s rules requiring companies to include activist proposals on the proxy ballot violate federal securities law and the First Amendment.

The background: An activist group that holds shares in Kroger Co. sought a shareholder vote on a proposal to have the grocery chain issue a public report concerning its equal opportunity employment policy.

• Kroger sought permission from the SEC to exclude the proposal from its proxy ballot, which the SEC granted. The group has sued the SEC, accusing the agency of acting in an inconsistent and politically motivated manner.

Why it’s important: Though the SEC rejected this proposal, the agency often requires companies to publish shareholder proposals it deems to have “broad societal impact.

• The NAM’s motion to intervene argues that the SEC’s requirement that companies publish and respond to these proposals is a violation of the First Amendment’s prohibition on government-compelled speech.
• Furthermore, federal securities law does not permit the SEC to dictate the content of company proxy statements, so the agency’s politicization of corporate governance has unlawfully federalized issues that have traditionally been governed under state corporate law.

Unnecessary—and increasing: Forcing manufacturers to take political positions on their proxy ballots drives up costs for the companies and draws needless and unwanted controversy, the NAM says. Yet, the number of activist proposals on proxy ballots is only growing.

• “In total, 682 shareholder proposals were filed for annual meetings being held through May 31,” The Wall Street Journal (subscription) reported.

How we got here: The NAM has been urging the SEC to prioritize the needs of long-term shareholders over activists’ agendas for many years.

• The NAM opposed the SEC’s guidance requiring companies to include most environmental and social proposals on their proxy ballots.
• It also urged the agency not to move forward with a proposed rule limiting companies’ ability to exclude activist proposals.

The last word: “The corporate proxy ballot is not the appropriate venue for policy decisions better made by America’s elected representatives, and manufacturers are regularly caught in the middle as activists on the left and the right bring fights from the political arena into the boardroom,” said NAM Chief Legal Officer Linda Kelly.

• “The NAM Legal Center is standing up for manufacturers to ensure they can focus on growing their businesses, driving economic expansion and job creation and creating value for shareholders.”