Xcel Energy Reaches Climate Risk Disclosure Pact With New York
Submitted by: Ted Allen, Publications
New York Attorney Andrew Cuomo announced an agreement with Xcel Energy for the utility firm to provide more disclosure to investors on the financial risks of climate change.
“This landmark agreement sets a new industry-wide precedent that will force companies to disclose the true financial risks that climate change poses to their investors,” Cuomo said in an Aug. 27 press release. “Coal-fired power plants can significantly contribute to global warming and investors have the right to know all the associated risks.”
The agreement was hailed by Mindy S. Lubber, president of the Ceres investor coalition, which has called for greater corporate disclosure of climate risks. “This groundbreaking settlement will send ripples far beyond Xcel Energy. It serves notice that all companies face financial exposure from climate change and will be expected to better inform investors of their strategies for dealing with it,” Lubber said in the New York press release.
Dick Kelly, chairman and CEO of Minneapolis-based Xcel, said the accord “will enhance our already aggressive efforts to be responsible environmental stewards.” “We previously provided detailed information concerning the expected impact of climate change and greenhouse gas emissions regulations on our operations, and under this agreement we will make even more detailed disclosures,” Kelly said in a press release, which notes that the company has voluntarily reduced its greenhouse gas emissions by more than 18 million tons since 2003.
According to Cuomo, Xcel agreed to provide detailed disclosure annually on present and probable future climate-change regulation and legislation; climate-change related litigation; and the physical impacts of climate change. Ceres--joined by Cuomo and state officials from California, Maryland, Florida, Rhode Island, and five other states, as well as the California Public Employees’ Retirement System--have petitioned the Securities and Exchange Commission (SEC) to clarify what companies should be disclosing about climate change risks. The SEC has not publicly acted on that request.
The settlement arose from an investigation that Cuomo launched last September when he demanded information from Xcel and four other major utility firms--AES, Dominion Resources, Dynegy, and Peabody Energy--that plan to develop additional coal-fired power plants. The subpoenas to the utility firms were issued under the Martin Act, a 1921 New York state law that grants the attorney general “broad powers to access the financial records of businesses,” Cuomo said.
At that time, Peabody Energy denounced Cuomo’s probe as political grandstanding. In a press release, the company said the investigation “has nothing to do with investor communications,” but is an “unwarranted use of the legal system to advance the ‘just say no’ agenda, which opposes practical energy answers and has driven America to an unnecessary energy crisis.”
Cuomo’s predecessor, Eliot Spitzer, invoked the Martin Act when he probed Wall Street analysts and mutual fund companies earlier this decade. Whereas Spitzer used the threat of criminal prosecution to negotiate settlements with investment banks, Cuomo primarily has used civil enforcement tools. In early June, he announced a settlement with Moody’s, Standard & Poor’s, and Fitch Ratings to reform the way they rate mortgage-backed securities. Throughout this month, Cuomo--with help from the SEC and other state officials--has made headlines by announcing that major brokerage firms have agreed to buy back billions of dollars in auction rate securities.
While some business advocates complain that Cuomo should leave these matters to federal regulators, he has received praise from other observers who don’t believe that the SEC has done enough to respond to the credit crisis. In an editorial on the rating firm settlement, Financial Week said “this is one of those times when the SEC could use a spine transplant from state regulators.”
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August 28, 2008 |
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Another View on Say-on-Pay Progress this Past Proxy Season
Submitted by: Tim Smith, Senior Vice President of Environmental, Social and Governance Issues at Walden Asset Management
The 2008 proxy season demonstrated strong steady support by a remarkable cross section of investors for the reform requesting that an Advisory Vote on Executive Pay be instituted by companies. Even though the number of companies where votes were held grew from 2007, the average vote remained constant around 42%.
In addition ten companies received votes of over 50% and the vast majority of votes were in the 40-49% range. For a second year resolution with a significant number of companies this is an unusually high voting plateau to reach. In addition there is a broad cross section of voting support, some very public and others more circumspect in their support, from T. Rowe price to TIAA-CREF.
With a number of financial companies the votes dropped, e.g. Citigroup, Merrill Lynch, and Morgan Stanley, which is puzzling since major compensation issues exist with those companies. It is hard to know if the reason is a change of the shareholder base because of sales and an influx of new investors. But it does not seem as though institutional investors are stepping back from their support of this reform. They tend to back it on principle, thus the confusion about voting shifts.
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From the point of view of proponents, these votes send a very strong message to company boards and management that this governance issue should be put on their agenda as a top priority for study and action. It is fascinating to see the range of responses, from companies committed to dialogue and careful study of the issue to companies which seem to hunker down and arrogantly ignore the feedback from shareowners. This is most frustrating when a resolution receives a 40 or even a 55% vote and the company refuses to talk.
Other companies are holding back to see what happens in the elections and if “say on pay” will become law. Looking forward, proponents plan to continue to raise this issue through resolutions with approximately 100 companies in 2009.
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International Financial Reporting Standards (IFRS) Could be Used by US Companies As Soon as Next Year
Submitted by: Marc Siegel, Headof Accounting Research
The US Securities and Exchange Commission voted unanimously yesterday (5-0) to propose a “roadmap” to what has been termed accounting convergence. The proposal provides a timetable toward the lofty goal of a single set of global accounting standards. Specifically, a small number of US-based companies (estimated to be slightly more than 100) could be eligible in 2009 to switch from reporting under US GAAP to reporting under IFRS. To be eligible, the company would need to be one of the 20 largest companies in its global peer group, with many peers already using IFRS.
Longer term, the proposal envisions moving large US registrants to IFRS in 2014, mid-size companies adopting in 2015 and the bulk of the remainder adopting in 2016. However, there are some caveats to these long-term milestones including a stabilized funding mechanism for the International Accounting Standards Board. There will be a checkpoint in 2011, at which point in time a new SEC Chairman would make a “go or no-go” decision on the longer term IFRS adoption schedule. Some have wondered whether the US Congress will ultimately weigh in on this issue. A wholesale adoption of IFRS would mean that US-based companies, for the first time, are utilizing accounting standards not promulgated by a US-based standard-setter. In other words, politics could play a role in the ultimate outcome of these efforts.
Having said that, this roadmap is a necessary step to spur to action all the training, education and other work to be done so that investors, analysts and all users of financial reports are ready if and when US-based companies begin to report using IFRS.
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August 25, 2008 |
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Another Majority Vote for “Say on Pay”
Submitted by: Carol Bowie, Governance Institute
Valero Energy recently disclosed results for the Advisory Vote on Compensation proposal that its shareholders voted on this year – the tally shows support of 53.7 percent (based on votes cast for and against), up from 53 percent support for the same proposal in 2007. Both years’ resolutions were submitted by the Unitarian Universalist Association of Congregations (UUA).
Valero thus becomes the tenth company on this year’s list of majority supported “say on pay” shareholder proposals. The list stopped at eight firms in 2007. Under its bylaws, Texas-based Valero counts abstentions when tallying results for shareholder proposals, and by its reckoning the measure did not pass. Valero spokesman William Day told Risk & Governance Weekly that, so far, the company has no plans to address the proposal.
In another distinction, the Valero resolution is the second to get majority backing from votes cast for two years in a row. The other was voted on at Ingersoll Rand. The measure also garnered 50.7 percent support at computer maker Apple this year after obtaining a near-majority (46.6 percent) in 2007.
While support declined somewhat at several financial firms that had the resolution on their ballots over the last two years, overall “say on pay” shareholder proposals have averaged about 42 percent support so far this year over more than 50 meetings where votes have been reported, according to RiskMetrics data – virtually the same level as 2007. Only two votes remain pending for fall meetings, at Procter & Gamble and Oracle. Proponents may currently be more focused on this year’s political election, which may give a boost to their push for advisory pay votes. According to the draft Democratic national platform released on Aug. 7, for example, party leaders “will ensure shareholders have an advisory vote on executive compensation, in order to spur increased transparency and public debate over pay packages.”
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August 22, 2008 |
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Appellate Court Rejects Challenge to Sarbanes-Oxley, PCAOB
Submitted by: Subodh Mishra, Governance Institute
A federal appeals court today rejected a challenge from Nevada accounting firm Beckstead and Watts, and the pro-business Free Enterprise Fund, claiming that the Public Company Accounting Oversight Board (PCAOB) is unconstitutional. The plaintiffs argued that the Sarbanes-Oxley Act of 2002, which gave rise to the PCAOB, violated the Constitution’s separation of powers provisions because the PCAOB’s board is not subject to presidential power to appoint or remove members, and because Congress does not control the board’s budget. The 2-1 ruling upholds a March 2007 lower court decision.
In a statement, the PCAOB said it was “gratified” by the decision and noted the court’s opinion is consistent with positions taken by several investors and investor groups, including the Council of Institutional Investors, AFL-CIO, and TIAA-CREF, as well as regulatory bodies such as the Securities and Exchange Commission.
“The decision today … is welcome news for the [SEC], investors and U.S. capital markets,” SEC Chairman Christopher Cox noted in a press release. “The [SEC] believes that the PCAOB is a highly effective organization whose continued existence is vital to protecting investors and furthering the public interest in the preparation of accurate and informative audit reports.”
Critically, observers say the decision will be welcome news at a time when capital markets are pulling back. “Had the decision gone the other way, it would have introduced a lot of uncertainty to capital markets, particularly at a time when we don’t need more uncertainty,” Duke University securities law professor James Cox told RiskMetrics Group. “From a public policy perspective, this was a very welcome decision.”
Professor Cox noted that it was the poor performance of the audit profession that gave rise to the last period of significant market uncertainty, when Enron, WorldCom, and other corporate titans collapsed under the weight of accounting irregularities. “We’ve avoided [a repeat] with this decision,” he said.
Today’s ruling also is a boost to the PCAOB’s financing mechanism, which relies on fees paid public companies.
According to the Associated Press, Judge Brett Kavanaugh of U.S. Court of Appeals for the District of Columbia circuit wrote in his dissent that the case represented “the most important separation-of-powers case regarding the president's appointment and removal powers to reach the courts in the last 20 years.” The PCAOB’s structure “unconstitutionally restricts the president's appointment and removal powers,” Kavanaugh wrote.
Christian Vergonis, an attorney for the Free Enterprise Fund, said the group was disappointed with the decision and intends to appeal either to the full appeals court or directly to the Supreme Court, the AP reported.
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Did VaR Forecast the U.S. Subprime Crisis?
Submitted by: Alan Laubsch, RiskMetrics Labs Asia, and Ron Papanek, Market Strategist
That depends on what VaR model was used. Most banks' models performed poorly which is not surprising given the popular use of historical simulation. While historical simulation provides stable VaR numbers, it has weak forecasting power and is entirely inappropriate during regime shifts (see Finger's "How Historical Simulation Made Me Lazy"). Responsive volatility estimators, such as EWMA and ARCH type models performed much better, and indeed provided early warning signals months before the full subprime meltdown in July 2007.
Download file Chart 1 illustrates the RM 2006 VaR forecast vs. realized log spread changes on the 2006-1 AAA ABX tranche. The first warning was a 300% vol increase from Dec 12 to 21 '06. The second was a 12 standard deviation / 350% vol spike on Feb 23 2007 (this was the day after HSBC announced that it fired the head of its US mortgage lending business as losses reached $10.5bn... the alarm bells were clearly ringing). Even though spreads almost tripled on that day from 11 to 30.8 bps, as seen in Download file Chart 2, it was not too late to hedge. In fact, spreads proceeded to tighten to a low of 14.08 bps on June 25 '07 before widening significantly in three major bear waves. In other words, risk managers had between two to six months lead time to execute hedges.
The main lessons are (1) pay attention to early warning signals, and (2) not all VaR models are created equally. To be useful, VaR should be dynamic and responsive to market conditions. After all, risk is dynamic. And while no model is perfect some models are certainly more useful than others.
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August 20, 2008 |
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Postponement of Discharge Vote Highlights Subprime Woes in Germany
Submitted by: Matthew Roberts, International Governance Research
IKB Deutsche Industriebank, the German bank that suffered the most significant losses as a result of the subprime mortgage crisis, will hold its second annual meeting of the year on Aug. 28 amidst growing uncertainty about its liquidity and future ownership situation. The bank, which specializes in financing small to midsize companies and is 45 percent owned by the German government, received a EUR 8.5 billion ($12.5 billion) bailout from the German government and a consortium of German banks in 2007 to cover subprime-related losses.
The losses were incurred in off-balance sheet transactions undertaken by the bank’s structured credit conduit Rheinland Holding, and the scope of the damage initially came to light in July 2007 after the release of the bank’s preliminary annual results. The timing of the discovery forced the bank to restate its earnings and delay its 2007 annual meeting until March 2008. An independent assessment of the damages by PricewaterhouseCoopers blamed IKB management for failing to implement effective risk analysis and risk management controls, and for giving its IKB Credit Asset Management subsidiary, which ran Rheinland Holding, a disproportionately high degree of responsibility over the company’s risk position.
Notably, for the second consecutive annual meeting, management is recommending that shareholders postpone liability discharges for members of the bank’s management and supervisory boards who were in office during the lead up to the subprime crisis. The vote of discharge, which is a routine agenda item at German annual meetings, is generally considered to be a symbolic vote of confidence in the actions of the management and supervisory boards during the previous fiscal year. Also, because supervisory board directors in Germany generally are elected once every five years, the vote to discharge represents one of the few opportunities that shareholders have to express their dissatisfaction with a company’s leadership. Although a vote to discharge does not necessarily preclude a company and investors from taking legal action against its directors, a management recommendation to postpone or refuse discharge is a good indicator that a company is considering such action.
In this case, IKB management has recommended postponing discharge because former IKB management and supervisory board members are currently being investigated for breach of duty under the authority of a special audit proposed by the Dusseldorf-based shareholder organization DSW and approved at the March 2008 annual meeting. DSW was able to successfully reverse IKB management’s original recommendation for discharging the supervisory board and pass its special audit proposal with 82 percent approval. DSW managing director Carsten Heise told RiskMetrics Group that the strong showing was attributable to the German government’s willingness to going along with the proposal. According to Heise, IKB is cooperating fully with the investigation, and that the results are expected to be published this fall.
Although IKB suffered more significant subprime-related losses than most other European banks, the bank’s concentrated ownership structure, combined with political support from Berlin, were clearly the decisive factors that enabled DSW to pass its special audit proposal. For the sake of comparison, the German government’s ownership percentage at IKB (45 percent) was actually greater than the total share capital participation at two shareholder meetings for large European banks with subprime-related shareholder proposals: UBS (37 percent) -- where a similar special audit proposal narrowly failed – and Deutsche Bank (33 percent) – where several more extreme shareholder proposals failed to receive significant support. Both of those banks have large free floats, whereas the German government’s dominant ownership position at IKB effectively allowed it to control the proceedings with a two-thirds voting majority. Thus the success of DSW’s proposal at IKB doe not reflect a groundswell of investor support in Europe so much as it reflects political pressure within Germany to get to the bottom of what has been a significant financial hit for the German government (this pressure was further illustrated last month when the opposition Free Democrat party pushed for a special government committee to investigate IKB’s managerial transgressions). In this respect, IKB appears to be an exceptional case, rather than the signal of changing investor sentiment in Europe.
In the lead up to next week’s annual meeting, the bank remains in a precarious financial position, and there is widespread concern in the German financial community that IKB’s collapse could trigger a more wide-ranging banking crisis there. Because the bank’s current liquidity is not expected to last beyond the end of the year, IKB management proposed a EUR 1.5 billion ($2.2 billion) recapitalization passed at the March annual meeting, but the recapitalization was blocked until last month by a number of shareholder lawsuits that were seen by some in the industry as opportunistic. By the time the shareholder lawsuits had been settled, the German government had stepped in to guarantee a subscription of at least EUR 1.25 billion ($1.84 billion) under the proposed rights issue, although this guarantee is currently being reviewed by the European Commission to determine whether it constitutes state aid (the subscription would take the government’s ownership stake in IKB to over 90 percent). This appears to be a formality however, since the government has resolved to sell its stake as soon as possible, preferably for a price of approximately EUR 800 million ($1.18 billion). According to news reports, private equity investors Ripplewood and Lone Star Funds have submitted final bids after Swedish Bank SEB – thought by many to be the preferred candidate – dropped out of the bidding. This creates an interesting scenario in which the German government would end up selling an important midsize domestic bank to a foreign private equity fund only three years after the Social Democratic Party (the junior partner in Germany’s ruling grand coalition) tried to swing national parliamentary elections through populist rhetoric that included branding foreign private equity and hedge funds as “locusts.” An announcement on the winning bid is expected soon, possibly by the end of the week.
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August 13, 2008 |
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Regulatory Actions around Auction Rate Securities
Submitted by: Marc Siegel, Head of Accounting Research and Analysis
As we’ve seen over the past week, several of the large banks have begun to announce plans to make whole the retail and institutional investors in auction rate securities. Some of these announcements have resulted from regulatory action while some companies are attempting to preempt regulatory action by entering into voluntary programs. Details around the regulatory actions precipitating the announcement by banks are highlighted in a recent article by Mondaq Business News. Specifically, the story discusses the Securities and Exchange Commission’s announcement last week to settle with Citigroup Global Markets, UBS Securities and UBS Financial Services to repurchase auction rate securities of retail investors in the near term and use best efforts to repurchase at par the securities of institutional investors by the end of 2009 or 2010. Additional news about auction rate securities and other big banks can be seen here. The New York Attorney General has indicated he may still pursue other avenues of investigation with respect to auction rate securities.
Given the federal and state regulator’s views on auction rate securities, we’re likely to hear more actions in the months ahead. Please let us know your thoughts on the auction rate securities situation.
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August 12, 2008 |
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Yahoo! Revised Vote Count Underscores Need for Reform of Proxy Voting Process
Submitted by: L. Reed Walton, Publications, and Ted Allen, Publications
Investors heard last week that votes against the re-election of Yahoo! board members were significantly higher than initially reported, due to an error.
Four directors -- Chairman Roy Bostock, CEO Jerry Yang, Ronald Burkle and Arthur Kern -- all received greater than 30 percent opposition at the company’s Aug. 1 annual meeting. The company had previously reported that no board member received more than 22 percent withhold votes. Another director, Gary Wilson, had just under 30 percent opposition, according to a company press release. The revised release, dated Aug. 5, notes that the error originated with Broadridge Financial Services, the firm that Yahoo uses to collect and tabulate shareholder votes.
No other directors received greater than 10 percent opposition. Incumbent director Robert Kotick is due to step down, as the board expands to accommodate billionaire investor Carl Icahn and two of his dissident nominees under an agreement that pulled the plug on Icahn’s bid to replace the entire board in a proxy contest. The three new Yahoo directors are likely to be appointed around Aug. 15, Dow Jones Newswires reported.
The company’s initial vote tally announcement, just after the meeting on Aug. 1, caught the attention of Yahoo critic Eric Jackson, founder of Ironfire Capital. Jackson leads a network of investors owning approximately 3.2 million Yahoo shares. He noted a discrepancy of about 200 million shares between the number of votes cast for directors last year and this year. After Jackson wrote about the error in his weblog, Capital Research Global Investors--which owns a 6.2 percent Yahoo stake--asked for a recount. According to the Associated Press, Capital opposed Yang and figured that he would have received more than the 14 percent opposition originally reported.
Broadridge said that a printing error was responsible for the incorrect results and re-issued the tallies, according to the AP. The revised results show that investors withheld 33.7 percent support from Yang, whereas opposition to his election was minimal last year. Bostock and Burkle had the most re-election opposition this year, with 39.6 and 37.9 percent withholds, respectively, versus dissent of 31.2 and 32.5 percent, respectively, in 2007.
The vote at Yahoo underscores the complexities of proxy voting in the U.S. market, where ownership is widely dispersed and about 85 percent of company shares are held in “street name” by brokers and other custodians. Edward Rock, a law professor at the University of Pennsylvania who co-wrote a 2007 paper, “The Hanging Chads of Corporate Voting,” said the proxy voting process is “crude, imprecise, and fragile.”
“Broadridge delivers more than 1 billion communications to investors per year. . . . It is an accident waiting to happen,” Rock said, according to MarketWatch.
“When it comes to the tabulation of proxy votes, most investors don't even know what they don't know,” said Pat McGurn, special counsel at RiskMetrics Group. “The tabulation process is as airtight as a sieve. It is as transparent as a brick wall. Simply put, the proxy voting infrastructure has failed to keep pace with the complexity of the investment process. It is only a matter of time until there is a complete meltdown at a significant meeting. Officials from the SEC, the stock exchanges, and Delaware must come together with key market players to fix the system.”
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August 11, 2008 |
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RiskMetrics Group’s 2008 Policy Survey
Submitted by: Gary Hewitt, Marketing
Feedback from institutional investors and issuers on emerging corporate governance issues is a key part of RiskMetrics Group's annual policy review and update process. This year, RiskMetrics is soliciting feedback through six regional surveys, covering the United States, the United Kingdom, the Americas, Asia, and Europe, and a survey designed for international markets in general.
The survey focuses on the most significant governance issues, such as director elections and board attendance, separation of chairman and CEO positions, executive compensation (including “say on pay”), proxy contests, and M&A.
For the first time, RiskMetrics also is conducting a parallel survey for all U.S. corporate issuers to gather further market insight on these emerging governance issues. RiskMetrics encourages respondents to complete surveys for all markets in which they have a corporate governance interest.
Individual survey responses will not be shared with anyone outside of RiskMetrics and will be used only by the RiskMetrics Policy Board for policy formulation purposes.
For more information on the surveys, and to participate, please click here. The deadline for responding has been extended to Aug. 19.
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August 5, 2008 |
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Postseason Review: Social Proposals
Submitted by: L. Reed Walton, Publications
U.S. shareholder proposals concerning greenhouse gas (GHG) emissions and product safety have fared better in 2008 than last year, while investors withdrew a record number of social and environmental proposals, according to RiskMetrics Group data.
There has been a rise in investor support for resolutions asking U.S. companies to produce GHG emissions reports, and also to formulate goals for emissions reduction. However, support has fallen this year for proposals asking for a board committee on human rights, sexual orientation anti-bias policies, and employment reforms.
The average support for social and environmental proposals so far this year is 14.7 percent over 147 meetings where results are known.
Support above 20 percent is considered significant for social and environmental resolutions, as those proposals historically have not received as much shareholder support as governance issues. Around 30 percent of vote results so far this year have exceeded that level--about the same as in 2007.
Notably, social issue proponents have withdrawn 129 resolutions this year, an all-time high. Often, social proponents value a withdrawal agreement over a high vote. Withdrawal of a proposal usually means that companies have agreed to implement part or all of the resolution. Timothy Smith, senior vice president of the ESG (environmental, social, and governance) group at Walden Asset Management, told Risk & Governance Weekly that many of the resolutions that saw high withdrawal numbers dealt with issues on which there is strong public and peer (corporate) pressure to take action. “Increasing investor votes coupled with consumer interest in such issues as climate change makes a ‘perfect storm’ of pressures that result in companies responding positively to reasonably framed shareholder resolutions,” Smith said.
Investor-sponsored resolutions requesting that issuers draw up concrete goals for reducing carbon emissions won 21.8 percent support over six meetings this year, compared with 20.7 percent support in 2007. Investors withdrew three proposals this year when officials at El Paso, Ford Motor, and Williams agreed to enumerate emissions reduction goals. More resolutions were voted this year than last, when four proposals went to a vote and two were withdrawn.
There were more proposals seeking GHG emissions reports on corporate ballots this season; eight went to a vote in 2008 while five were voted last year. Support for the resolution has gone up considerably this year, averaging 31.9 percent at six meetings so far where results are known. The proposal averaged 19.4 percent support in 2007, although this year’s average may change when the two remaining vote results are disclosed.
Investors also have continued their efforts to urge the Securities and Exchange Commission to issue formal guidance to companies on the disclosure of “material” climate-related risks. A coalition of 18 institutions, including pension fund officials from California, Florida, Maryland, New Jersey, New York, and North Carolina, filed a petition with the SEC last September. In June, the investors supplemented their petition with additional evidence on the need for formal SEC guidance.
Meanwhile, Steven Milloy’s Free Enterprise Action Fund (FEAF)--a conservative investment group--submitted proposals asking companies to report on the effect of sustainability efforts on their operations. Milloy is skeptical about global climate change and it was evident in the proposals that FEAF opposes corporate action against global warming. The SEC allowed four companies--Johnson & Johnson, Dow Chemical, Caterpillar, and Wal-Mart Stores--to omit the proposal on the grounds that the firms had substantially implemented it. The companies had already released global warming reports, only the reports detailed environmentally friendly changes in operations. Ten of these proposals did go to a vote. The resolution averaged 3.5 percent support at seven firms where preliminary or final vote results are available.
Other Environmental Proposals
Investors filed 11 proposals relating to product safety review after a number of consumer products were recalled in late 2007. Four companies received SEC permission to exclude product safety proposals, and investors withdrew an additional six resolutions. According to proponents, firms like JC Penney and Circuit City agreed to release reports discussing a new approach to identifying and replacing potentially toxic packaging. Only one resolution, filed at Avon Products and focused specifically on nanomaterials, went to a vote, winning 25.4 percent investor support. A similar proposal was withdrawn, at Colgate-Palmolive, when the company agreed to include in a sustainability report an affirmation that it does not use nanomaterials in consumer products or packaging.
Resolutions seeking a review of product toxicity have seen increasing support since they were first filed two years ago. The proposals won 36.1 percent at Becton, Dickinson--according to regulatory filings--and 38.3 percent at Kroger, according to proponents. A single product toxicity measure received 26.1 percent support at Bed Bath & Beyond last year, and the issue averaged 8.25 percent over four meetings in 2006.
Calls for reports on company hazards to surrounding communities averaged 9.7 percent support, up from 8.3 percent in 2007. Only two such resolutions were voted both this year and last.
A new proposal asking energy firms to review the impact of their oil sands operations has fared well this year, winning 28.1 percent support at Chevron, and 27.5 percent at ConocoPhillips, proponents reported. Meanwhile, a first-year proposal on establishing a board sustainability committee had single-digit support at three firms, averaging 5.8 percent.
Proposals requesting an environmental sustainability report from the board have fared about the same this year--averaging 28.6 percent support over five meetings this year as opposed to 27 percent support last year. In addition, investors withdrew 22 proposals this year. Among the companies that agreed to produce a sustainability report in exchange for withdrawal were Safeway, Raytheon, and Wendy’s International.
Social Issue Proposals
Support for shareholder requests for reports on corporate political donations and donation policies continued to rise this year, averaging 26.1 percent over 17 meetings. It is the highest average support for the proposal since it was first filed in 2004; it averaged 24.9 percent in 2007, 21.6 percent in 2006, 11.2 percent in 2005, and 9.4 percent in 2004. Proponents have also withdrawn a high number of these proposals. Investors withdrew 15 resolutions so far this year, and 22 last year.
There has been lower support this year for human rights-related proposals. Resolutions asking for a board committee on human rights have won 4.2 percent support over six meetings so far, down from 4.6 percent at four meetings in 2007. Support for proposals asking that companies review, report on, or amend human rights policies dropped sharply, receiving 11.8 percent support over nine meetings. Resolutions related to companies’ human rights policies in 2007 won 28 percent support over four meetings last year.
Filings of human rights proposals have gone up this year due to a number of resolutions relating to business in the African nation of Sudan. Three Sudan-related proposals were withdrawn, at Morgan Stanley, T. Rowe Price, and Merrill Lynch. Merrill Lynch, which came to an agreement with Trillium Asset Management, committed to discussing human rights policy on its corporate social responsibility Web site and to forward the Sudan Divestment Task Force’s list of highest corporate offenders to executives who oversee development on new investment products.
Investors Against Genocide (IAG), an affiliate of the divestment task force, put forward a number of shareholder proposals asking mutual funds to divest from companies supporting the Sudanese government. The resolution received an average of 25.1 percent support at 13 Fidelity funds, IAG reports. Fidelity, as well as some TIAA-CREF mutual funds, halted voting on the measures (CREF until 2009). IAG’s communications director, Susan Morgan, said that no further Sudan divestment resolutions are scheduled to be voted until companies like Barclays, Vanguard, and Franklin Templeton--at which they were submitted--schedule meeting dates.
Equality- and labor-related proposals have also experienced a decline in support this year. New York City’s pension funds again asked companies to implement the “equality principles.” This is a set of 10 guidelines aimed at ensuring there is no discrimination against homosexual or transgender employees. The resolutions have averaged 13.3 percent support over three meetings so far; the vote results for four other meetings have not been disclosed. Last year, the issue won 32.7 percent support over four meetings. The city pension funds withdrew 13 proposals this season, as compared with eight in 2007. Companies that settled with proponents this year included Family Dollar, Frontier Oil, and Borg-Warner.
Similar proposals asking for a clause in company documents affirming a policy of non-discrimination on the basis of sexual orientation also had lower support this year. The issue received 28.9 percent support over five meetings, down nearly 10 percentage points from 2007’s average of 37.5 percent over four meetings.
Notable exceptions to the decline were investor requests that issuers implement the United Nations’ International Labour Organization (ILO) guidelines. These proposals won 16.8 percent support over four meetings this year, up from 13 percent last year.
A new social proposal this year addresses consumer health care. Shareholders, led by religious groups, asked companies to adopt principles for health care reform based on those drafted by the Institute of Medicine. The resolution received only 4.3 percent support across eight meetings where it went to a vote, but investors withdrew 13 of the 27 total proposals filed. Companies like McDonald’s, IBM, and Target agreed to issue news releases or post statements about the principles online. The SEC allowed three health care companies to exclude the resolutions from their proxy ballots on the grounds that the proposals related to those firms’ “ordinary business.”
RiskMetrics Group’s ESG (Environmental, Social & Governance) Research Team contributed to this article. A longer article on shareholder voting on social and environmental issues is available in the latest issue of RiskMetrics’ Corporate Social Issues Reporter.
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August 1, 2008 |
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Atkins Criticizes “Abusive Use” of Proposal Process
Submitted by: Ted Allen, Publications
In a July 22 speech to the U.S. Chamber of Commerce that’s likely to rile activist investors, outgoing SEC Commissioner Paul Atkins criticized the use of non-binding shareholder proposals and engagement efforts by some institutions. Atkins said shareholder proposals on executive compensation, the environment, operations in certain countries, and health care “often consume a significant amount of management time and attention.”
The Republican commissioner, who left the SEC August 1, noted that none of the 17 shareholder proposals on the ballot at ExxonMobil’s 2008 annual meeting passed. He also cited Delaware Chancery Judge Leo Strine’s comments at the SEC’s proxy roundtables last year that the state’s corporate law does not address non-binding proposals and that these resolutions are a result of federal action (under the SEC’s shareholder proposal rule). Atkins said the proxy process “should facilitate proposals concerning only those subjects that could properly be brought before a meeting under the corporation’s charter or bylaws and under state law.”
Numerous investors expressed support for the shareholder proposal process and its impact on corporate behavior at the SEC roundtables, but Atkins believes issuers could adopt a bylaw that limits the consideration of non-binding proposals at annual meetings. “To date, I am not aware of any company that has sought to implement such a bylaw, but it would not come as a surprise if a company decides to do so in the future,” he said.
Atkins also denounced the efforts by some institutions to negotiate withdrawal agreements with companies. “The abusive use of the shareholder proposal process by some institutional investors is troubling,” he said. “What we are seeing basically is large institutional investors, who have no duty to other shareholders, pushing behind the scenes particular measures that fail at company after company when actually put up for a shareholder vote . . . Essentially, they are using their particular influence, the threat of shame or whatever, to try to get the company to acquiesce to their position.”
“It would not surprise me if, more often than not, the board simply applies a simple cost-benefit analysis and then takes the path of least resistance,” Atkins said. “So we must be vigilant that the shareholder proposal process does not result in the tyranny of the minority.”
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