The SEC Division of Corporation Finance recently informed public companies that it will express no views on the application of Rule 14a-8(i)(9) during the current proxy season. The Corp Fin decision leaves public companies who have received proxy access proposals in a lurch on what to do if they wish to make their own proxy access proposal. Those companies wonder how ISS and Glass Lewis may react to their decisions.
The Business Roundtable has sent a letter to ISS and Glass Lewis giving its views on how the proxy advisory firms should react to issuers decisions on proxy access proposals.
According to the Business Roundtable, it believes that it would be inappropriate for ISS and Glass Lewis to apply their voting policies in a way that substitutes their own judgment as to the appropriate course of action in place of the Board’s judgment. In addition, the Business Roundtable noted:
“Accordingly, we believe that it would be inappropriate for ISS and Glass Lewis to make proxy voting recommendations based on a company’s reliance on Rule 14a-8(i)(9) when the Commission has not taken formal regulatory action to change the rule. Just as Chair White has determined to study the issue and the Division has determined to express no views on the matter at this time, we urge ISS and Glass Lewis to proceed in a deliberate fashion and exercise restraint as it considers how it will assess the response of companies that exclude shareholder proposals from their company proxy materials based on solid SEC precedent governing “conflicting” company proposals.”
