
In its latest move to relax constraints on public companies, the U.S. Securities and Exchange Commission (SEC) is making it easier for companies to ignore shareholder proposals.
In a legal bulletin issued Wednesday, the SEC rescinded prior guidance, and indicated that companies will be more easily able to exclude shareholder proposals from their proxy voting materials, unless the proposals are “significantly related” to a particular company’s business, or focus on a policy issue that has a “sufficient nexus” to a particular company.
Under the new approach, regulators will assess whether a proposal’s significance to the company’s business impacts at least 5% of total assets, net earnings and gross sales. The shift will make it easier for companies to reject proposals dealing with broader social and environmental issues.
Shareholders will still be able to raise social or ethical issues, the SEC said, but they would need to connect those issues to “a significant effect on the company’s business.”
SEC commissioner Caroline Crenshaw, the sole Democratic member of the regulator, criticized the move in a statement. The new guidance “moves the goalposts smack dab in the middle of this year’s shareholder proposal process,” creating uncertainty for companies and investors alike, she said.
Crenshaw said that while it’s not surprising that the new approach is being adopted given the agency’s new business-friendly agenda, the timing of the change is significant — as it will give companies time to exclude shareholder proposals for this proxy season at the last minute, while investors won’t have time to revise their filings.
“Shareholders have already crafted and submitted their proposals for this season. Corporations and shareholders will incur costs to supplement or alter no-action requests and responses,” she said, adding that this could harm issuers, along with shareholders.
“Doing so at this hour creates undue costs and uncertainty for investors and corporations alike. This type of political policy shifting mid-season serves to undercut capital formation, not facilitate it,” she said.
“We are so focused on undoing the prior commission’s agenda that we sow chaos now. By choosing this path, we forsake all consistency, and perhaps even the legitimacy, of the independent, historically staff-governed process to the detriment of all parties,” Crenshaw added.