Corporate Governance

2022 Corporate Governance and Executive Compensation Survey - 20th Annual

Issue link: https://digital.shearman.com/i/1484098

Contents of this Issue

Navigation

Page 29 of 99

ANTI-ESG PROPOSALS ON THE RISE Another notable trend in the 2022 proxy season is the slow rise of anti-E&S proposals seeking to counter the impact of E&S-focused action at the corporate level. 16 Until recently, E&S shareholder proposals have largely pushed companies to take more environmentally friendly and socially progressive action, whereas anti-E&S shareholders and activists have generally relied on means other than shareholder proposals to attempt to influence corporate change. Unsatisfied with abandoning E&S shareholder activism to pro-E&S proponents, anti- E&S activists represent a growing voice, and in 2022 they addressed a range of topics, including racial and gender diversity, climate change and corporate transparency. Most of the anti-E&S proposals were expressly opposed to existing or proposed E&S initiatives at the subject company. Anti-E&S activists have targeted a vast array of companies. For example, the National Center for Public Policy Research submitted a proposal calling on Johnson & Johnson to audit its DEI efforts, arguing that these efforts do not have their intended effects. 17 In addition, Intel faced a proposal asking that it refrain from publicly displaying the pride flag on the grounds that it created a hostile work environment for religious employees. 18 Following Engine No. 1's proxy contest at Exxon Mobil in 2021, at Exxon Mobil's 2022 annual meeting, shareholder activist and lobbyist Steven Milloy submitted a proposal to prohibit all future shareholder proposals that do not have prior board approval, arguing that stock ownership had become politicized and that climate activists were "nuisance shareholders" assailing corporations' business operations. 19 However, anti-E&S proposals failed to receive support or were excluded from voting altogether at higher rates than their E&S counterparts. Generally, anti-ESG proposals received an average of less than 3% of support in 2022, and as such, are not eligible to be resubmitted in 2023 as they failed to meet the SEC's 5% threshold requirements for resubmission. 20 For shareholders, it is not always easily discernable from the plain text of the proposal whether it is pro or anti-E&S in nature. 21 A subset of anti-E&S proposals attempt to advocate against corporate E&S efforts by taking advantage of the SEC's procedural rules regarding the exclusion of future shareholder proposals on similar topics, but do so in a manner different from the intended effect of these rules. 22 These anti-E&S proposals usually have resolutions that are drafted in language that is identical to an E&S proposal on the same issue, but supporting statement accompanying the resolution makes clear the proponent is critical of the E&S initiative behind the resolution. Thus, anti-E&S activists can put forward a proposal substantially similar to an E&S proposal and cause a future E&S proposal attempting to address the same action to be barred from future shareholder meetings as a result of the SEC's rules against duplicative shareholder proposals. While anti-E&S proposals have often been easily excluded or defeated and therefore have minimally impacted corporate action, the level of anti-E&S activism is likely to continue to grow in the coming years. Shareholder engagement and communication has always been the antidote of choice for boards and management to contend with shareholder activism. Understanding the issues that shareholders have been most recently focused on is an important way to help inform companies as they prepare to navigate the proxy seasons ahead. 16 In 2022, close to 52 anti-ESG proposals were submitted, in comparison with 26 in 2021 (see Georgeson, An Early Look at the 2022 Proxy Season, at 7, https://www.georgeson.com/us/insights/2022-early-proxy-season- review (2022)); see also Ruth Saldanha, "Anti-ESG Sentiment Gains Spotlight but Not Support," Morningstar, https://www.morningstar.com/ articles/1109374/anti-esg-sentiment-gains-spotlight-but-not-support (August 15, 2022); see also Martha Carter, Matt Filosa, Sydney Carlock & Sean Quin, "ESG and the Bear: What to Make of the 2022 Proxy Season," Teneo, https://www.teneo.com/esg-and-the-bear-what-to-make-of-the-2022-proxy- season (August 15, 2022). 17 See Ruth Saldanha, "The Rise of Anti-ESG Shareholder Proposals," Morningstar, https://www.morningstar.com/articles/1086978/the-rise-of-anti- esg-shareholder-proposals (April 1, 2022). 18 See U.S. Securities and Exchange Commission, "Intel Corporation; Rule 14a-8 no-action letter," https://www.sec.gov/divisions/corpfin/cf- noaction/14a-8/2022/hotzintel031822-14a8.pdf (March 18, 2022). 19 See ExxonMobil, "Notice of 2022 Annual Meeting and Proxy Statement," https://corporate.exxonmobil.com/-/media/Global/Files/investor-relations/ annual-meeting-materials/proxy-materials/2022-Proxy-Statement.pdf (April 7, 2022); see also Corbin Hiar, "Conservative shareholders attack 'climate clown show'," E&E News, https://www.eenews.net/articles/ conservative-shareholders-attack-climate-clown-show (June 10, 2022). 20 See Martha Carter, Matt Filosa, Sydney Carlock & Sean Quin, "ESG and the Bear: What to Make of the 2022 Proxy Season," Teneo, https://www. teneo.com/esg-and-the-bear-what-to-make-of-the-2022-proxy-season (August 15, 2022). 21 At companies such as Duke Energy, General Electric, Eli Lilly and Pfizer, anti-E&S proposals largely copied from the pro-ESG proposals in order to get on the ballot (see "The Rise of Anti-ESG Shareholder Proposals," Morningstar, https://www.morningstar.com/articles/1086978/the-rise-of-anti- esg-shareholder-proposals (April 1, 2022)). 22 Under Rule 14a-8(i)(11), companies can exclude proposals that substantially duplicate another proposal previously submitted, and Rule 14a-8(i) (12) raises the voting thresholds required for any defeated proposal to be brought again. A failed shareholder proposal may not be resubmitted for three years unless it receives the support of at least 5% of the voting shareholders in its first submission. Proposals submitted two and three times in the prior five years must receive 15% and 25% support, respectively, in order to be eligible for resubmission in the following three years (see U.S. Securities and Exchange Commission, "SEC Adopts Amendments to Modernize Shareholder Proposal Rule," https://www.sec. gov/news/press-release/2020-220 (September 23, 2020). This is higher than the 3%, 6%, and 10% support thresholds that was applicable prior to the amendment of Rules 14a-8(i) (11) and 14a-8(i)(12) in 2020. In July 2022, the SEC proposed amendments to Rules 14a-8(i)(11) and (14)a-8(i)(12) that would reduce the number of proposals that would be excluded, including by finding that a proposal is duplicative only if it "addresses the same subject matter and seeks the same objective by the same means." (see U.S. Securities and Exchange Commission, "Fact Sheet: Shareholder Proposals Under Rule 14a-8: Proposed Rules," https://www.sec.gov/files/34- 95267-fact-sheet.pdf. Shearman & Sterling LLP 27 | Trends in E&S Proposals in the 2022 Proxy Season

Articles in this issue

Links on this page

view archives of Corporate Governance - 2022 Corporate Governance and Executive Compensation Survey - 20th Annual