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Harvard Roundtable on Shareholder Engagement Background Materials Harvard Roundtable on Shareholder Engagement June 14–15, 2017 Background Materials TABLE OF CONTENTS Choice Act 2.0 and other Regulatory Reforms Shareholder Proposals • Letter to SEC on Rule for Shareholder Proposal Resubmissions, Business Roundtable, April 2015 • Can We Do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law, Leo Strine, March 2014 • CHOICE Act 2.0 Affecting Shareholder Rights, Dodd-Frank.com, April 2017 • Shareholder Proposal Process in the Crosshairs, Cooley LLP, April 2017 • Financial CHOICE Act Imposes Sweeping Shareholder Proposal Reforms, Davis Polk & Wardwell LLP, April 2017 Say-on-pay Frequency • CHOICE Act 2.0 Frequency of Shareholder Approval of Executive Compensation Dodd-Frank.com, April 2017 • Did Say-on-Pay Reduce or “Compress” CEO Pay?, Pay Governance LLC, March 2017 Universal Proxy • Draft Financial Choice Act 2.0 Prohibits Universal Proxy, Dodd-Frank.com, April 2017 • Universal Proxy Unlikely to be Adopted (and Would Have Little Effect Anyway), Fried, Frank, Harris, Shriver & Jacobson LLP, December 2016 Corporate Governance in the Trump Era • Tread Lightly When Tweaking Sarbanes-Oxley, McDermott Will & Emery LLP, April 2017 • Dealmakers Expect a “Trump Bump” on M&A, Brunswick Group LLP, April 2017 NASDAQ’s Proposed Reform • The Promise of Market Reform: Reigniting America’s Economic Engine, Nasdaq, Inc., May 2017 1 Engagements between Issuers and Activists Engagements with Activists • The Activist Investing Annual Review 2017, Activist Insight, February 2017 • Proxy Fights: Don’t Underestimate the Risk, Vinson & Elkins LLP, February 2017 The Rise of Settlements • Dancing with Activists, Lucian Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch, May 2017 • Balancing Concessions to Activists Against Responsiveness to Broader Shareholder Base, Cleary Gottlieb Steen & Hamilton LLP, April 2017 • The Rise of Settled Proxy Fights, FTI Consulting, March 2017 • Think Twice Before Settling With An Activist, Vinson & Elkins LLP, December 2016 • Settlement Agreements with Activist Investors—the Latest Entrenchment Device?, Thompson Hine LLP, July 2016 Engagements between Issuers and Institutional Investors • Letter from Larry Fink to CEOs Regarding Investor Engagement, BlackRock, Inc., January 2017 • BlackRock’s 2017-2018 Engagement Priorities, CamberView Partners, March 2017 • Protecting the Interests of Long-Term Shareholders in Activist Engagements, State Street Global Advisors, October 2016 • Shareholder Engagement: An Evolving Landscape, Abernathy MacGregor, March 2017 • Promoting Long-Term Value Creation—The Launch of the Investor Stewardship Group (ISG) and ISG’s Framework for U.S. Stewardship and Governance, Wachtell, Lipton, Rosen & Katz LLP, February 2017 The Short-Term/Long-Term Debate • Long-Term Value Begins at the Board, State Street Global Advisors, March 2017 • Who Bleeds When the Wolves Bite?, Leo Strine, February 2017 • Engagement: The Missing Middle Approach in the Bebchuk-Strine Debate, BlackRock, Inc., June 2016 Buybacks and Repurchases • Short-Termism and Shareholder Payouts: Getting Corporate Capital Flows Right, Jesse Fried and Charles C. Y. Wang, January 2017 • How the Influx of Dividend-Minded Shareholders Will Impact Shareholder Activism, Covington & Burling LLP, November 2016 2 • Buybacks and the Board: Director Perspectives on the Share Repurchase Revolution, Tapestry Networks, September 2016 Horizontal Shareholding • Economic Downsides and Antitrust Liability Risks from Horizontal Shareholding, Einer Elhauge, January 2016 • Cross-Ownership by Institutional Investors, Fried, Frank, Harris, Shriver & Jacobson LLP, March 2016 • Defusing the Antitrust Threat to Institutional Investor Involvement in Corporate Governance, Edward B. Rock and Daniel L. Rubinfeld, March 2017 • Product Market Competition in a World of Cross-Ownership: Evidence from Institutional Blockholdings, Jie He and Jiekun Huang, April 2017 Company Defenses and Legal Arrangements Anti-Activist Poison Pills • Anti-Activist Poison Pills, Marcel Kahan and Edward Rock, March 2017 Texas Anti-Activist Bill • Glass Lewis on Texas Bill Targets Activist Investors, Advisors, Glass, Lewis & Co., May 2017 Special Meetings • Special Meeting Proposals, Simpson Thacher & Bartlett LLP, September 2016 Multiple-Class Capital Structure • The Untenable Case for Perpetual Dual-Class Stock, Lucian Bebchuk and Kobi Kastiel, April 2017 • Snap, Inc. Reportedly to IPO with Unprecedented Non-Voting Shares for Public, Institutional Shareholder Services, Inc., February 2017 • Snap and the Rise of No-Vote Common Shares, Ken Bertsch, May 2017 • Dual-Class: The Consequences of Depriving Institutional Investors of Corporate Voting Rights, Bernstein Litowitz Berger & Grossmann LLP, May 2017 • The “Corporate Governance Misalignment” Problem, Wilson Sonsini Goodrich & Rosati, March 2017 • Dual-Class Stock and Private Ordering: A System That Works, Wilson Sonsini Goodrich & Rosati, May 2017 • S&P Dow Jones Indices Announces a Consultation on the Eligibility of Non-Voting Share Classes, S&P Dow Jones, April 2017 3 Tab I: Choice Act 2.0 and other Regulatory Reforms 300 New Jersey Avenue, NW Telephone 202.872.1260 Suite 800 Facsimile 202.466.3509 Washington, DC 20001 Website brt.org April 14, 2015 Mr. Brent Fields Secretary U.S. Securities and Exchange Commission 100 F Street, NE Randall Stephenson AT&T Inc. Washington, DC 20549 Chairman Ursula M. Burns Dear Mr. Fields: Xerox Corporation Vice Chair Re: File No. 4‐675, Request for Rulemaking to Amend Exchange Act Rule David M. Cote Honeywell 14a‐8 under the Securities Exchange Act of 1934 Regarding Vice Chair Resubmission of Shareholder Proposals Andrew N. Liveris The Dow Chemical Company This letter is submitted on behalf of Business Roundtable, an association of Vice Chair chief executive officers of leading U.S. companies working to promote sound John Engler President public policy and a thriving U.S. economy. Business Roundtable’s CEO members lead U.S. companies with $7.2 trillion in annual revenues and Jessica Boulanger Senior Vice President nearly 16 million employees. Business Roundtable member companies comprise more than a quarter of the total value of the U.S. stock market and Marian Hopkins Senior Vice President invest $190 billion annually in research and development—equal to 70 percent of U.S. private R&D spending. Our companies pay more than $230 William C. Miller, Jr. Senior Vice President billion in dividends to shareholders and generate more than $470 billion in sales for small and medium‐sized businesses annually. Business Roundtable LeAnne Redick Wilson Senior Vice President companies give more than $3 billion a year in combined charitable contributions. The U.S. Chamber of Commerce and other national organizations submitted a petition to the Securities and Exchange Commission (the Commission or SEC) on April 9, 2014 for rulemaking to amend the provisions under Rule 14a‐8 of the Securities Exchange Act of 1934 (the Exchange Act) regarding the excludability of previously submitted shareholder proposals from company proxy materials (the Petition), and we are writing in support of the Petition. As an initial matter, the Roundtable has long been a strong advocate for good corporate governance and supports efforts by the SEC to protect investors and preserve effective mechanisms for shareholder communication. Moreover, the Roundtable is cognizant of the many legislative mandates that the SEC is in the process of responding to and the significant demands these mandates have placed on the Commission’s resources. Nevertheless, we have been urging the Commission for over a decade to address the issues inherent in the April 14, 2015 Page 2 current proxy voting system,1 and we encourage the Commission to seek comment on amendments to the existing rules. As set forth in our 2012 Principles of Corporate Governance,2 we believe “it is the responsibility of the corporation to engage with long‐term shareholders in a meaningful way on issues and concerns that are of widespread interest to long‐term shareholders, with appropriate involvement from the board of directors and management.” Our member companies take shareholder communications seriously, and we believe that the responsibility to communicate effectively with shareholders is critical to the functioning of the modern public company and the public markets. The Commission’s proxy rules play a role in this process by providing and regulating a channel of communication among shareholders and companies.3 However, the current resubmission thresholds in Rule 14a‐8(i)(12)4 (the “Resubmission Rule”), are largely ineffective at cultivating this channel of communication and do little to protect shareholders and companies from needless expense and effort. Moreover, changes over the past decade in the proxy voting process have exacerbated the ineffectiveness of the Resubmission Rule, increasing the likelihood that companies will be required to repeatedly provide, and shareholders repeatedly review and vote on, proposals that are of no interest to a significant majority of shareholders. Today, companies and their shareholders and the Commission and its staff spend substantial time, effort and other resources on proposals that previously have only been supported by a very small minority of shareholders. A shareholder proposal currently may be excluded under the Resubmission Rule if a proposal dealing with “substantially the same subject matter” was included recently in the company’s proxy statement
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