Another Shareholder Proposal? McDonald’s Deserves a Break Today – WSJ

Sigh.  Another whine about those pesky shareholders from those who insist they are the ultimate capitalists.  James R. Copland of the Manhattan Institute, which is funded by right-wing foundations (whose names should be disclosed in published material like this column), writes in the Wall Street Journal that poor McDonald’s should not have to bear the terrible burden of shareholder proposals.  He argues that the oxymoronically named CHOICE Act would not go far enough in merely requiring investors to hold one percent of the stock to submit a shareholder proposal; he wants to eliminate all “social” shareholder proposals entirely.  Since “ordinary business” proposals are already prohibited, that reminds me of the baseball manager who said that his team couldn’t win home games and couldn’t win away games “so all we have to do is find another place to play.”

He writes:

According to an SEC survey, it costs more than $100,000 merely to respond to a shareholder proposal and include it on the ballot. The far greater cost comes from the distractions such proposals create for directors and senior executives, as well as the risk that companies will change their policies under pressure.

We are find this self-reported, self-serving number highly suspect.  If, as Copland says, the proposals are re-submitted, how expensive can it be to cut and paste the previous year’s rebuttal?  How much time can it take for executives and board members to vote to oppose it again?

He also complains that some companies have made changes to respond to shareholder proposals, even if they did not get a majority vote.  That’s called a market-based response.  Since even a 100 percent vote is advisory only, we have no concerns that the executives and board members who have all of the decision-making power will be unduly persuaded unless the case is effectively made.  This is literally why we pay them the big bucks.

I do share some of Copland’s frustration with the shareholder proposal process, however.  I wonder if he would be willing to support my suggestion for improvement: no more shareholder proposals, but a strict majority vote standard so that instead of raising issues like the transparency of political contributions and the sustainability of the supply chain through non-binding proposals, a majority of shareholders can simply remove directors who are not satisfactory.

 

Source: Another Shareholder Proposal? McDonald’s Deserves a Break Today – WSJ

WSJ CFO Network, Washington 2017

The Wall Street Journal’s CFO Network gathering is always engaging and informative. This year VEA Vice Chair Nell Minow attended to appear at breakout sessions on board effectiveness and shareholder activism, and reported back on what she learned:

The speakers included Senators John McCain on national security (he said his biggest fears are North Korea and Russia) and Elizabeth Warren (she noted pointedly that there is widespread support, even among Trump voters for maintaining or expanding the Consumer Financial Protection Bureau and cited the President’s often-claimed enthusiasm for breaking up the TBTF financial institutions), Chairman of the House Ways and Means Committee Kevin Brady (he insists that major tax reform, including filing on a postcard for most individuals, is going to happen), and Ranking Member Adam Schiff of the House Permanent Select Committee (he supports an independent investigation into Russian interference with the democratic process).

A presentation on the prospects for financial regulation/deregulation included former SEC Chairman Harvey Pitt and former Commissioner Paul Atkins. Atkins referred to Dodd-Frank as “mostly rubbish…littered with all sorts of gimmies to unions, trial lawyers, and activists,” mentioning the conflict mineral and pay ratio disclosures as examples. He and Pitt emphasized the importance of making sure the investors get material information and are not overwhelmed with data. They insisted that the new administration will bring tough cases. Since fines are paid by the shareholders, they suggested that they do not impose a meaningful penalty. Pitt recommended outsourcing audits of investment managers and broker-dealers, using the Commission’s authority to exempt issuers from regulatory burdens, and experimenting with pilot programs to test regulatory ideas. Another possibly experiment: summary disclosures with hyperlinks providing more information, to assess the way users access the data. Atkins said, “You read through this stuff and most of it is kind of baloney.”

SEC Faces Obstacles to Rolling Back Dodd-Frank Rules – WSJ

Litigation could stymie efforts by the Securities and Exchange Commission to comply with sweeping executive orders intended to roll back financial regulations.

President Donald Trump on Friday took the first step in expunging the 2010 Dodd-Frank financial overhaul act, which he said hinders business and economic growth.Mr. Trump signed an executive action requiring the U.S. Treasury Department to develop an outline for scaling back financial regulations.The SEC doesn’t have the authority to revoke Dodd-Frank, which is an act of Congress. Nearly 80% of rules under the law are already implemented. Instead, the commission can offer relief by amending its rules, or granting exemptions—a process that is open to judicial review.

Any legal objections could slow the SEC’s already lengthy amendment process, hindering the agency’s ability to execute the president’s executive order, legal experts and former SEC staff said.

“This is not going to be simple, fast or cheap,” said Joseph Grundfest, a Stanford professor of law and business who served as a Democrat SEC commissioner during the Reagan administration.

Source: SEC Faces Obstacles to Rolling Back Dodd-Frank Rules – WSJ

The Business Roundtable’s Proposal to Silence Shareholders

The Business Roundtable, once again proving that they only like capitalism when the providers of capital are silent and powerless, has released a proposal to “improve” the shareholder proposal process. They say this is necessary because

the current shareholder proposal process is dominated by a limited number of individuals who file common proposals across a wide range of companies but own only a nominal amount of shares in the companies they target. These investors are pursuing special interests — many of which have no rational relationship to the creation of shareholder value and conflict with what an investor may view as material to making an investment decision. As a result, the current process is often used to promote the self-interest of a minority of shareholders, frequently at a significant cost to the company. 

The BRT’s claims that these “improvements” are necessary are unpersuasive, including the alleged “costs” of proposals and a completely inapposite analogy to “proxy access” eligibility. A non-binding proposal is in an entirely different category than nominating a director who may be elected to the board.

If the BRT would pay less attention to the proponents and more attention to the level of support the proposals get from a wide range of investors, they would understand that this is what is referred to as a market test. It is an outrage that they want to limit even further the shareholder proposal process, when even a unanimous vote in favor is advisory only. The best way for corporate executives to reduce the number of proposals and votes in favor is to adopt corporate governance best practices and develop better lines of communication with investors.

Source: Responsible Shareholder Engagement and Long-Term Value Creation | Business Roundtable

The Problem With Roger Lowenstein

Fund manager Roger Lowenstein demonstrates a breathtaking ignorance of government checks and balances in an op-ed for the New York Times, suggesting that Senator Elizabeth Warren does not have the right to ask President Obama to remove Mary Jo White as Chair of the SEC.

He sneers:

Last time I checked, the S.E.C. was a regulatory agency of the executive branch, in which Ms. Warren is not, in fact, employed.

Senator Warren is, on the other hand, a member of the United States Senate, which approves (or not, as Judge Merrick Garland can attest) Presidential appointees like Chair White. The terms “advise” and “consent” make clear the duty of the Senate to oversee Presidential appointees. The Senate is also responsible for the enabling legislation and budget for the Commission, and therefore it is entirely within its jurisdiction and indeed its obligation to review and comment on its activities. And a note: she did not call for Chair White to be “fired,” as Lowenstein claims. Commissioners cannot be fired. But the Chair designation is within the authority of the President to reassign and it is entirely within the authority of a Senator (or anyone else, for that matter) to suggest that he do so. (Does anyone remember Lowenstein objecting to the House considering impeachment of the Commissioner of the IRS? For some reason, that did not offend his sense of propriety.)

In fact, it is a provision imposed by Congress in the Commission’s budget that prevents it from issuing rules that would require companies to disclose their direct and indirect campaign contributions and lobbying expenditures.

Lowenstein writes:

Actually, dredging up the details of political spending has nothing to do with protecting investors, though it might fall into the category of “things corporations do that some people do not like.”

Actually, it falls into the category of “things the Supreme Court explicitly predicated the Citizens United decision on.”

In the majority decision, Justice Kennedy Anthony M. Kennedy said that corporate political spending depends on the ability of shareholders to ensure that the speech reflects their views rather than diverting corporate assets for the benefit of executives. He suggested that any abuse could be corrected by shareholders “through the procedures of corporate democracy.” He said this would happen because all political spending will be thoroughly disclosed online: “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”

Justice Kennedy correctly notes that the expenditure of corporate assets for political purposes can only be legitimated by transparency and a robust market response.

Senator Warren’s comments on Chair White were accurate, appropriate, and civil. Lowenstein’s criticism of Senator Warren was not.

Source: The Problem With Elizabeth Warren – The New York Times

SEC Unveils Executive Pay Ratio Guidelines – WSJ

The controversial “pay ratio” rule has finally been approved, requiring companies to disclose the ratio between the pay for the top executives and the median employee. Company executives have argued that this number is hard to calculate and misleading. Investor groups have responded that if the company knows how many employees it has and how much it is paying them, it is not a difficult calculation, and that investors are sophisticated enough to understand the significance of the disclosures.

The Securities and Exchange Commission issued its first guidelines for calculating pay ratios that compare executive compensation to that of the company’s median employee.  Companies are required to report this information in their proxy, registration and information statements, as well as annual reports for the first fiscal year beginning January 1, 2017. The rule is mandated by the Dodd-Frank law and was adopted in August 2015.

Source: SEC Unveils Executive Pay Ratio Guidelines – WSJ

To Disclose or Not to Disclose? Wells Fargo Woes Shine Light on a Knotty Problem – WSJ

Wells Fargo didn’t disclose anything publicly about its “cross-selling” abuses or looming settlement with regulators before the pact was announced Sept. 8—including in its second-quarter Securities and Exchange Commission filing weeks earlier, on Aug. 3. Three Democratic senators who grilled the bank’s chief executive last week now have asked the SEC to investigate whether Wells Fargo misled investors by failing to disclose the issue sooner.

While the bank’s management had known since 2013 that some employees had created deposit and credit-card accounts for customers without their knowledge, the accounts were a tiny portion of Wells Fargo’s business. The settlement, which included a $185 million fine, was less than 1% of last year’s earnings. The matter was “not a material event,” Chief Executive John Stumpf told a Senate panel last week.

That is true in terms of the bank’s income statement. Not so its reputation or share price. The bank and Mr. Stumpf have faced a political and public furor and the stock has lost nearly 10% since the settlement, or about $23 billion.

Source: To Disclose or Not to Disclose? Wells Fargo Woes Shine Light on a Knotty Problem – WSJ

SEC to Companies: Come Clean on CEO vs. Worker Pay Gap

In a lagged and dilatory but thought-provoking move in the US corporate governance and transparency landscape, SEC approved Dodd-Frank’s requirement on disclosing CEO vs. Worker Pay Gap after five years of procrastination (Congress passed the Dodd-Frank financial reform bill in July 2010. Dodd-Frank created the disclosure requirement but left the SEC to determine exactly how the rule would be implemented).“The rule, which is mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act, would provide investors with information to consider when assessing CEO compensation, while providing companies with substantial flexibility in calculating the ratio.”The SEC required companies to disclose the median compensation of all its employees, excluding the CEO, and release a ratio comparing that figure to the CEO’s total pay. Companies would have to report the pay ratio starting in 2017.

Source: SEC to Companies: Come Clean on CEO vs. Worker Pay Gap

SEC Will Only Target Directors in Egregious Cases | Bloomberg BNA

Securities and Exchange Commission enforcement cases alleging violative behavior by corporate directors are rare and will only be initiated in clear cases of misconduct or when obvious signs of violative behavior are ignored, Lara Shalov Mehraban, associate director in the agency's New York Regional Office, said.

Mehraban attempted to allay concerns voiced by corporations and their lawyers about the SEC enforcement cases against corporate directors and other gatekeepers, such as compliance officers, who may try to fix compliance problems and find themselves entangled in an agency investigation.

“Enforcement isn't second guessing good-faith decisions by the board, but rather bringing cases where directors have either taken affirmative steps to participate in fraud or enabled fraudulent conduct by unreasonably turning a blind eye to obvious red flags,” Mehraban said Feb. 10 at a Practising Law Institute conference in New York.

via SEC Will Only Target Directors in Egregious Cases | Bloomberg BNA.

SEC.gov | Monsanto Paying $80 Million Penalty for Accounting Violations

The Securities and Exchange Commission today announced that St. Louis-based agribusiness Monsanto Company agreed to pay an $80 million penalty and retain an independent compliance consultant to settle charges that it violated accounting rules and misstated company earnings as it pertained to its flagship product Roundup.  Three accounting and sales executives also agreed to pay penalties to settle charges against them.

via SEC.gov | Monsanto Paying $80 Million Penalty for Accounting Violations.