Proxy Issue

Shareholder advocates are not holding their breather waiting for the Securities and Exchange Commission to go upward and give proxy approach this year, particularly in light of last year’s 3-1 SEC voting to refuse approach.
However, one marriage is pushing forward to have shareholder-nominated directors onto boards by threatening a tribunal battle over the matter. The American Federation of State, County and Municipal Employees has filed four proposals calling for proxy approach—a voting to okay party bylaws that would subsequently permit shareholders to appoint their own directors to that party’s panel—and one proposition to recoup stockholder expenses related to running a slate of directors, if at least one is elected. Rich Ferlauto, manager of joint administration and pension investment at AFSCME, said two or three extra proposals are in the works. “This will be a current tale on the destiny of proxy approach,” he said.

The marriage has been in talks with the four companies—J. P. Morgan Chase, Bear Stearns, Countrywide Financial and E-Trade—to have them to voluntarily concur to permit shareholders a voting on proxy approach. If the companies try to exclude proxy approach proposals from their ballots via SEC no-action letters, “they could be involved in litigation,” Mr. Ferlauto said.

In November, after months of haggling and minus one Democratic commissioner, the SEC voted to remain issuing no-action letters to companies that bar proxy approach proposals from their ballots. That same day, AFSCME filed the proxy approach proposals with J. P. Morgan and Bear Stearns. A few weeks subsequently, the marriage followed upward with proposals at Countrywide and E-Trade.

SEC spokesman John Nester said the authority will not suggest an original proxy approach regulation, which SEC chairwoman Christopher Cox has promised this year, until it has a complete complement of commissioners.

A lawful fight may so be coming. One of the companies, Bear Stearns, has already filed a petition with the SEC for a no-action letter. A spokeswoman for J. P. Morgan said the bank too newly filed a no-action petition, but she declined to offer a transcript of the petition. If the SEC grants those requests—Mr. Nester says it hasn’t still—so it’s backwards to conversant lawful sod: the 2nd U. S. Circuit Court of Appeals.

From Mr. Ferlauto’s view, the 2nd Circuit is a better spot for proxy approach lawful battles because it is mostly seen as empathetic to stockholder concerns. In 2006, AFSCME brought lawsuit against American International Group in the 2nd Circuit, which ruled that the SEC could not randomly overturn its past stance and forbid proxy approach. Until 1990, the SEC had prohibited companies from excluding proxy approach proposals from their ballots.

The Countrywide proposition may be nixed by Bank of America’s pending acquisition of the mortgage lender. Mr. Ferlauto said he missed B of A’s filing deadline, then if the Countrywide buyout is approved, the party will flee proxy approach for at least one year.

One new option AFSCME is pursuing involves an expense reimbursement proposition it submitted to Apache Corp. That proposition would need the vitality party to recoup the solicitation expenses for a shareholder-nominated brief slate, or half the amount of directors on Apache’s panel, in the case that at least one of those nominees wins.

While some believe the expense proposition is a better backup for proxy approach because it allows shareholders to vie to a level with party ballots, Mr. Ferlauto calls it at better favorable to proxy approach, which he will remain to drive for from the SEC. He anticipates that some firms, including powerful investment investigation firm RiskMetrics, will go away in backing of the expense proposition.

In the meantime, though, other federal agencies are taking a hard line on proxy proposals. Last month, the Department of Labor issued an advisory opinion that said pension plan fiduciaries should vote proxies only on “issues that affect the value of the plan’s investment.” The opinion was written in response to a letter from the U.S. Chamber of Commerce, which opposes greater proxy access on the grounds that it allows political manipulation of public companies by unions and others.

The DOL expressed worry about proxies being used by pension funds and others as a manner to “encourage specific legislative, restrictive or national policy positions that have no link to the payment of benefits or program management expenses. ” For instance, the DOL advisory view specifically prohibits proxy proposals that ask for joint officers to reveal private political contributions, because the expense involved in soliciting proxy votes would develop no clear-cut welfare to shareholders. Corporate lobbyists lauded the letter. U. S. Chamber president Thomas Donohue said it “sends a clear-cut content that marriage pension trustees need to place workers’ retirement protection first, instead of any political schedule,” adding that “theoretical beliefs” would no longer be satisfactory as justifications for proxy proposals. “This letter gets downward to dollars and cents; either your actions will demonstrably increase pension program returns for workers or they won’t. ”