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US announces new approach to proxy disputes, seen by activist shareholders as a blow

On Monday, the top U.S. financial regulatory body changed the grounds for which companies can request permission to skip voting on shareholder resolutions. This is seen as making things more difficult for activists who want to force votes about controversial topics like climate change or workplace diversity. The Securities and Exchange Commission announced on its website that it will no longer rule on common proxy objections such as whether or not an activist's request was filed late, or if the filer owns enough shares. The SEC stated that there is an exception if a company claims jurisdictional reasons, such as state law, which gives them grounds to exclude a particular item. Last month, SEC Chairman Paul Atkins - an appointee by President Donald Trump - suggested that many shareholder proposals were improper under Delaware law.

According to Erik Gerding of Freshfields, who was the director of the division until last December, the new policy and Atkins views will lead companies to rely on the state exemption when filing their requests.

Gerding stated that "this could be the end for shareholder proposals, as we know it," if Delaware courts and the state legislature support Atkins' view.

SEEKING RESURANCE

Around this time every year, companies begin to ask the SEC Division of Corporation Finance if they can be assured they won't face enforcement action for leaving shareholder resolutions out of their annual meeting ballots. They are granted permission about half of the time. Recent shareholder meetings have been dominated by resolutions addressing topics like workforce diversity and emission, despite the fact that top investors' support has declined in recent years. Fund leaders claim that their support is less needed because companies have recently implemented voluntary reforms on issues of environmental, social, and governance. Republicans have criticized ESG efforts. This year, the agency took other steps to reduce activist influence.

Sanford Lewis, a lawyer who represents ESG activist, said that nearly all proposals can be blocked if there is an "extreme attack on shareholder rights". He said that activists might focus on challenging individual directors.

A spokesperson for the SEC said in an email that the decision was made "after thoroughly considering staff resources and timing issues, as well as the role of the staff in the shareholder proposal processes."

The spokesperson stated that "with over 900 filings and registration statements received during the shutdown of the government, this decision allows staff to focus their attention on transactional issues, such as capital formation and investor safety, which are time sensitive."

Caroline Crenshaw - the only Democrat at the SEC - said in a statement that Monday's changes were "more of a gift to the issuers rather than an exercise on resource allocation." It is also an act of hostility towards shareholders.

(source: Reuters)