Interim Vote Tallies: To Disclose or Not to Disclose

by Akin Gump Strauss Hauer & Feld LLP

Uncertainty continues as Broadridge flip-flops over its policy on the disclosure of interim proxy tallies in a proxy contest. In early February 2014, Broadridge announced a new policy that a company and shareholder proponents would only receive results of votes cast in favor of their respective proposals. A few days later, Broadridge reversed course and announced that it would not implement that policy but that “both sides of a proxy contest will continue to receive interim voting updates for their own and each other’s ballot.”

The policy updates follow last year’s controversy over Broadridge’s disclosure of interim proxy tallies during a contested shareholder proposal at JPMorgan. Historically, Broadridge had disclosed interim vote tallies to the company and to proponents of shareholder proposals who used Broadridge to distribute proxy soliciting materials. The interim vote tallies were reportedly leaked to the public and, days before the annual shareholder’s meeting, Broadridge declined to share interim vote tallies with the shareholder proponents, citing its contractual obligation to broker clients who had expressed concern over the practice. The policy was later reviewed by the Broadridge Steering Committee, which noted in a July 2013 newsletter that Broadridge was taking a neutral stance on the policy but was contractually obligated to cease its practice in response to concerns received from brokers about the early release of their voting data.

Broadridge has been free to set its own policies on the matter without regulatory oversight, and several groups have called on the Securities and Exchange Commission (SEC) to intervene. The JPMorgan controversy incited U.S. Senator Charles Schumer (D-NY) to write a letter to SEC Chairwoman Mary Jo White urging the SEC to create “clear rules of the road with respect to the dissemination of voting tallies,” and the Council of Institutional Investors, which represents corporate, public and union employee benefit plans, wrote a letter to the SEC to express its “deep concerns” over Broadridge’s reversal of its vote-sharing policy. The Broadridge Steering Committee also suggested that the SEC should provide clarity on the issue.

Some experts argue that early voting results are insignificant given that the votes are not actually cast until the meeting, and shareholders have the opportunity to change their votes up to the time of the meeting. Others argue that withholding early voting information from shareholder proponents gives companies an unfair advantage in a contested proxy solicitation by allowing companies to target proxy solicitations in the days leading up to a final vote. Broc Romanek also raises confidentiality concerns, questioning whether public leaks of interim vote tallies could sway shareholder votes.

In response to the debate, shareholder proposals have been submitted for the 2014 proxy season for “enhancing confidential voting” policies, and the ISS has issued a policy of evaluating such proposals on a case-by-case basis. As shareholder activism continues to rise, these policy questions have the potential to become critical to the outcome of high-profile proxy contests. Given Broadridge’s significant influence over the proxy process (reportedly processing 85% of shares voted in the U.S. and 72% of shares voted outside the U.S.) and lack of regulatory oversight, this may be an area ripe for SEC guidance to provide clarity and consistency in the proxy process.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Akin Gump Strauss Hauer & Feld LLP | Attorney Advertising

Written by:

Akin Gump Strauss Hauer & Feld LLP

Akin Gump Strauss Hauer & Feld LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.