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Trump's SEC chief shifts power away from investors and into boardrooms

Experts say that new policies by the U.S. Securities and Exchange Commission give corporate boards greater power over investors. This could limit investor-initiated efforts to reform everything from climate policy or director contests.

Since the U.S. president Donald Trump appointed Mark Uyeda as acting chairman of the Securities and Exchange Commission last month, the agency has made a number of changes. They have increased the filing requirements for passive funds and limited the communication capabilities that investors can use.

Attorneys say that the changes will give directors greater freedom to ignore efforts to limit emissions and report diversity in the workforce. Traditional activists who run their own director slates may also find it more difficult to challenge boards.

Ann Lipton, a professor of business law at Tulane University, said: "It is a reallocation that is relatively dramatic. It's not only to make corporate policies but also to protect them against activists."

Uyeda, along with other Republican officials, including Paul Atkins, Trump’s nominee to lead the SEC, have expressed their skepticism about environmental, social, and governance (ESG), investment considerations. Uyeda stated in a speech from 2023 that "shareholder meetings were never intended to be debating societies or political battlegrounds under state corporate law."

A spokesperson for the SEC declined to comment upon being contacted. Atkins didn't respond to any questions posed by his current firm.

Fewer ballot items

The SEC changes are consistent with other Trump Administration efforts, such as the dismantling of diversity programs and withdrawal from the Paris Climate Agreement.

ESG resolutions received significant support between 2021 and 2022 but have declined since. In a legal bulletin issued on February 11, the SEC encouraged companies to avoid voting on resolutions by claiming that the proposals would "micromanage" the businesses.

This change could make the process of negotiating with executives difficult for activists who are interested in ESG.

Rick Alexander, CEO at Shareholder Commons (which tracks and writes resolutions), said that it would be more difficult to carry out this kind of work if it was harder to get a resolution passed by the SEC.

The SEC revised its "beneficial ownership" reporting interpretations on February 11, allowing firms such as asset managers BlackRock or Vanguard to rely more on SEC Schedule 13G forms to report their major holdings.

The agency has tightened the rules on when managers may use the Schedule 13D form instead of the more complicated Schedule 13D which increases their costs. The SEC will now test if an organization "imposes pressure" on management, such as by tying director voting to the presence of a staggered or poison pill defense against takeovers.

BlackRock and Vanguard both have policies on proxy voting that suggest these circumstances could lead critical votes.

BlackRock and Vanguard declined comment.

Caroline Crenshaw via email, the only Democratic member currently on the SEC said that the change may have a negative impact on the outreach of big funds.

The interpretation confuses institutional investors with an unstated aim of discouraging them from engaging in business with corporations. Crenshaw stated that this policy was bad for capital creation.

Communication Breakdown

Thirdly, new guidelines have been issued on the use of electronic records by investors to send out "exempt solicitations" or communications between shareholders.

Smaller investors have started to file their own exempt solicitations to express their opinions on certain issues, such as whether they should oppose a director or support a resolution by shareholders.

In an update on January 27, the SEC restricted their use. The SEC stated that the documents "are not intended to be used as a means by which someone distributes written soliciting materials to security holders" but are only meant to inform the public about written materials sent through other means to security holders.

Tom Quaadman is Senior Vice President of the U.S. Chamber of Commerce. This top business lobbying organization welcomed the SEC changes.

He said: "You are seeing a rebalancing in SEC rules and policies that is designed to remove special interest activism, and to bring things back to an investor-focused focus." Reporting by Ross Kerber, Boston. Simon Jessop, London editor.

(source: Reuters)