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SEC Adopts Amendments and Issues Guidance Related to Proxy Voting Advice

On July 22, the Securities and Exchange Commission announced the adoption of amendments (the Amendments) to the SEC’s rules governing proxy solicitations that are intended to “facilitate the ability of those who use proxy voting advice — investors and others who vote on investors’ behalf — to make informed voting decisions without imposing undue costs or delays that could adversely affect the timely provision of proxy voting advice.” The Amendments represent a modified version of the amendments the SEC originally proposed in November 2019, which were previously discussed in the November 8, 2019 edition of Corporate & Financial Weekly Digest. In a press release issued by the SEC, the staff of the SEC stated that the Amendments codify the SEC’s “longstanding view that proxy voting advice generally constitutes a solicitation under the proxy rules” by amending the definition of the terms “solicit” and “solicitation” in Rule 14a-1(l) under the Securities Exchange Act of 1934, as amended (the Exchange Act), and amend Rule 14a-1(l) to specify the circumstances under which a provider of proxy voting advice will be deemed to be engaging in a solicitation subject to the proxy rules. In addition, the Amendments include new Rule 14a-2(b)(9) under the Exchange Act, which conditions the availability of certain exemptions from the filing and information requirements of the federal proxy rules typically used by proxy advisory firms upon such proxy advisory firms’:

  • complying with conflicts of interest disclosure requirements, including providing specified disclosure in their proxy voting advice or in an electronic medium used to deliver such advice; and

  • adopting and publicly disclosing policies and procedures designed to ensure that (1) their proxy voting advice about a registrant is made available to the registrant at or prior to the time when such advice is disseminated to the proxy advisory firms’ clients; and (2) their clients are provided a mechanism to become aware of any written response by registrants to such proxy voting advice in a timely manner before the applicable meeting of the registrant’s shareholders.

The Amendments establish non-exclusive “safe harbors” that provide that a proxy advisory firm will be deemed to:

  • satisfy (1) above, which is codified in Rule 14a-2(b)(9)(ii)(A) under the Exchange Act, if the proxy advisory firm’s written policies and procedures are “reasonably designed” to provide registrants with a copy of its proxy voting advice, free of charge, no later than the time it is disseminated to the proxy advisory firm’s clients; and

  • satisfy (2) above, which is codified in Rule 14a-2(b)(9)(ii)(B) under the Exchange Act, if the proxy advisory firm’s written policies and procedures are “reasonably designed” to provide notice on an electronic platform, through email or by other electronic means that the relevant registrant has filed, or has informed the proxy advisory firm that it intends to file, additional soliciting materials and providing an active hyperlink to those materials on EDGAR when they are available.

The Amendments also modify the antifraud provision in Rule 14a-9 under the Exchange Act to include examples of when the failure to disclose certain material information in proxy voting advice, including, for example, material information concerning the proxy advisory firm’s methodology, sources of information or conflicts of interest, could be considered misleading.

The SEC did not adopt a part of its 2019 proposals that would have required proxy advisors to submit their reports to registrants before distributing them to investors, which would have provided registrants with the opportunity to identify factual errors or other weaknesses in the reports and take appropriate action to ensure that investors receive complete and accurate information related to their voting decisions. Instead, the Amendments require a proxy advisory firm to elect to distribute its report to the registrant prior to or simultaneously with the distribution to the proxy advisory firm’s clients.

The SEC’s adoption of these Amendments is not without controversy. The Council of Institutional Investors has expressed concern that the Amendments could “result in delays in distribution of proxy advice, driving up costs for investors, impairing the independence of proxy advice and causing uncertainty for institutional investors.” Institutional Shareholder Services (ISS), a proxy advisory firm, previously filed a lawsuit against the SEC concerning the 2019 proposals, which lawsuit was stayed until the earlier of January 1, 2021 or the promulgation of final rules by the SEC. In light of the adoption of the Amendments and the differences between the Amendments and the amendments that were originally proposed in 2019, it remains to be seen if, and, if so, how, ISS’ lawsuit will proceed.

The Amendments were accompanied by guidance issued by the SEC (the Guidance), available here, for investment advisers concerning their proxy voting responsibilities, fiduciary duties and voting systems that (1) allow the investment advisers’ clients’ votes to be automatically populated based on based on advice received from proxy advisory firms (so-called “pre-population”); and/or (2) automatically submit the clients’ votes to be counted (so-called “automated voting”). The Guidance will become effective on publication in Federal Register.

The Amendments will become effective 60 days after publication in the Federal Register, but affected proxy advisory firms that are subject to the final rules are not required to comply with the amendments to Rule 14a-2(b)(9), discussed above, until December 1, 2021.

The SEC’s press release announcing the adoption of the Amendments is available here, and the SEC’s final rule adopting release is available here.

©2020 Katten Muchin Rosenman LLPNational Law Review, Volume X, Number 206

TRENDING LEGAL ANALYSIS


About this Author

Mark D. Wood, corporate securities lawyer Katten Muchin Chicago Law firm
Partner

Mark D. Wood is head of Katten's Securities practice and concentrates in corporate and securities law. Mark represents public companies, issuers and investment banks in initial public offerings (IPOs) and other public offerings, private investment in public equity (PIPE) transactions, debt securities and other securities matters.

Mark also represents clients in complex corporate transactions, including tender offers, mergers, acquisitions, dispositions, going-private transactions, private equity investments, joint ventures and...

312-902-5493
Mark Reyes Securities Lawyer Katten Muchin law firm Chicago office
Partner

Mark J. Reyes concentrates his practice in corporate and securities matters, including representing issuers and investors in public offerings and private placements of equity and debt securities and advising clients in complex corporate transactions such as mergers, acquisitions, private investments in public equity (PIPEs), private equity investments and joint ventures. He also counsels public companies on securities law compliance, disclosures and corporate governance matters.

Shown below is a selection of Mark’s engagements.

  • Representation of hospitality company in connection with its initial public offering and listing on NYSE, as well as ongoing counseling with respect to compliance with securities laws and NYSE rules, disclosure and corporate governance matters.
  • Representation of NASDAQ-listed public company in the banking industry in connection with strategic transactions, capital raising transactions, compliance with securities laws and NYSE rules, disclosure and corporate governance matters, including strategic acquisitions, notes offering and at-the-market offering.
  • Representation of clean tech manufacturer for industrial equipment in connection with alternative public offering and listing on NASDAQ, as well as ongoing counseling with respect to compliance with securities laws and NASDAQ rules, disclosure and corporate governance matters.
  • Representation of NASDAQ-listed issuer in connection with selling stockholder block trades.
  • Representation of NYSE-listed industrial manufacturer with respect to compliance with securities laws and NYSE rules, disclosure and corporate governance matters.
  • Representation of NASDAQ-listed medical device company with respect to compliance with securities laws and NASDAQ rules, disclosure and corporate governance matters.
312-902-5612
Susan Light, Katten Law Firm, Finance Law Attorney, New York
Partner

Susan Light focuses her practice on financial services regulatory matters. She counsels broker-dealers, hedge funds, investment banks and financial services clients on enforcement issues involving the Securities and Exchange Commission (SEC), Financial Industry Regulatory Authority (FINRA), other self-regulatory organizations (SROs) and state and federal regulatory authorities. She has particular experience related to sales practice issues, financial and operational issues, anti-money laundering, crowdfunding, cybersecurity, and cryptocurrencies.

...
212-940-8599
Michael T. Foley, Katten, Lawyer, Finance, FINRA, Chicago
Special Counsel

Michael Foley represents broker-dealers, investment advisers and other financial services industry participants with respect to a broad spectrum of legal and regulatory matters arising under the federal securities laws.

Michael has nearly 20 years of experience in private practice and in-house at both a large, full-service broker-dealer and at an online discount broker-dealer, advising broker-dealers and other financial institutions regarding compliance with the federal securities and commodities laws, and with the regulations of the US Securities and Exchange...

312-902-5452
Associate

Alyse Sagalchik concentrates her practice on corporate matters, with an emphasis on mergers and acquisitions, joint ventures, private equity and securities transactions. Alyse also advises companies on a broad range of general corporate, federal securities laws and corporate governance matters, including Securities Exchange Act of 1934 reporting and disclosure matters. She has represented strategic and financial buyers and sellers in M&A transactions ranging in value from $10 million to more than $15 billion and spanning a wide variety of industries, including health...

312.902.5426