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Trump's SEC gives companies more control over investors. They were pushed back by lawsuits

Activists said that a new federal approach, which gives U.S. firms more control over the proposals that shareholders vote on during their annual meetings, creates regulatory uncertainty and leads to litigation. In November, the U.S. Securities and Exchange Commission changed its tradition of having staff approve shareholder proposals before a company rejects them. It gave executives greater discretion in deciding which resolutions to include on their proxy statement, the mandatory document distributed before shareholder meetings.

At least three lawsuits have been filed by investors against AT&T and Axon Enterprises, and there could be more. Giovanna Eichner, a shareholder advocate with Green Century Capital Management in Boston, said that the SEC's decision to step back created uncertainty for the engagement process.

Eichner stated that "this lack of rules and structure is more than anything else leaving everyone in a state of confusion about how to proceed." In November, activists expressed concern that the changes were in line with other efforts by Trump's appointed regulators to reininforce shareholder efforts in environmental, social, and governance (ESG investing). Republicans from states that produce energy have criticized ESG initiatives for reducing corporate profits.

However, the legal threat has made U.S. listed companies more cautious about their new power. As You Sow, a shareholder activist group, has filed 47 proxy proposals this year. Companies have blocked up to half of them using their new power. This is roughly the same as last year when companies only blocked 8 out of 63 resolutions.

"Companies must decide whether they want to maintain a good relationship between themselves and their shareholders or if they want to pay millions to corporate lawyers." Andy Behar, CEO of As You Sow. A SEC spokesperson declined to comment. In November, a person who was familiar with agency thinking stated that the change was primarily motivated by the desire to save time for staff.

LAWSUITS CHANGE TACK: CHANGING TACK

Pepsi informed the SEC on January 5 that it would not be submitting a proposal to review animal welfare practices in its supply chain. For example, whether bulls are being forced at Indian sugar factories to pull sugarcane carts with excessive weight. Pepsi claimed that the applicant failed to provide details about their availability to discuss this proposal in the manner required. The plaintiff sued the company on February 19, stating that she had offered to have a meeting with them. The following day, Pepsi announced that it would include this resolution in its proxy.

Asher Smith, an attorney representing the People?for Ethical Treat of Animals Foundation and the filer, said: "It's us who brought the lawsuit. We forced Pepsi into following the proper procedure."

Pepsi did not respond to any questions.

New York City pension funds sued AT&T on February 17, after the company refused shareholders the opportunity to vote on a proposal that sought details about its workforce demographics. Mark Levine, the New York Comptroller who oversees the pension funds of the city, announced a week later that AT&T had agreed to settle by allowing shareholders to vote. He called it a "major victory" for investors in the face of corporate efforts to undermine transparency and accountability.

AT&T declined to comment on requests. Axon, the maker of stun guns, plans to avoid a vote that would require a report about its political contributions. The company says it will "micromanage" their business. Nathan Cummings Foundation sued the company at the U.S. District Court for the District of Columbia in order to force a vote. This suit is still pending.

Laura Campos is a senior director of the?foundation. She said that shareholders needed to sue to protect their rights to submit resolutions. She said that when the Securities and Exchange Commission stopped providing substantive answers to no-action requests it left shareholders with limited options to protect their rights.

Axon didn't answer any questions.

Other companies have chosen a different path. On November 7, Starbucks asked that a conservative think tank, National Center for Public Policy Research, skip a resolution filed on the topic of transsexual health care coverage. Starbucks claimed that the issue was "ordinary business" and therefore a vote could be skipped. Starbucks could have ignored the resolution after the SEC made its change, but chose to schedule the vote for their annual meeting on March 25, instead. The company declined to comment.

(source: Reuters)