The Insignificance of Proxy Access

Marcel Kahan is the George T. Lowy Professor of Law at the New York University School of Law. This post discusses a recent paper by Professor Kahan and Professor Edward Rock of the University of Pennsylvania School of Law. Their paper, titled “The Insignificance of Proxy Access”, is available here.

The SEC recently adopted rules on proxy access. These rules grant shareholders who hold at least 3% of the company stock for three years the right to nominate directors and to have their nominees included in the company’s proxy statement and the ballots distributed by the company. Because proxy access is viewed as dramatically lowering the costs of an election contest, both proponents and opponents of these rules predict that they will have a significant impact. Contrary to this conventional wisdom, we argue that proxy access will lead to few shareholder nominations, that most of these nominees will be defeated, and that the occasional nominee who does get elected will have little impact.

Based on past involvement in shareholder activism, we believe that neither mutual funds nor private pension funds will make significant use of proxy access. Certain large public pension funds have shown a modest interest in activism and may make some nominations. The entities with the greatest interests in activism — hedge funds and union-affiliated funds — will generally not satisfy the ownership and holding period requirements.

When compared to traditional proxy contests and to withhold campaigns, proxy access involves significant disadvantages, while promising only modest advantages. The cost savings of proxy access compared to traditional contests are overstated because most proxy contests expenses are discretionary campaign expenses or relate to other expense items that are unaffected by the proxy access rule. By contrast, the limitations that come with proxy access are significant: the number of nominees a shareholder can propose is limited; the level of shareholder support required to gain a seat, as a practical matter, is increased; the company retains control over the design of the proxy cards; and the company retains exclusive access to preliminary voting information.

When compared to withhold-vote campaigns, the more certain effect on board makeup and governance from a successful proxy access campaign must be weighed against countervailing factors that reduce the likelihood of success: the higher level of shareholder support required for success; the greater challenge of positive versus negative campaigning; and the vulnerability of the dissident shareholders and their nominees to attacks by the company for lack of qualification or conflicts of interest. Such attacks will resonate especially for nominees by unions and public pension funds. Their inability or unwillingness to defend against such attacks without incurring significant expense may make it difficult to find qualified nominees.

Overall, we believe that proxy access will have some undesirable effects – it will result in some increase in company expenses and may rarely increase the leverage of shareholders whose interest conflict with those of shareholders at large – and some desirable ones — it may occasionally lead to the election of nominees at recalcitrant boards, where such nominees may have a modest impact on governance and a marginal impact on company value. None of these effects is likely to be very material, and the net effect is likely to be close to zero.

The full paper is available for download here.

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  1. Rob Berick
    Posted Thursday, November 11, 2010 at 10:38 am | Permalink

    Very interesting and thoughtful perspective on the topic. While I do disagree that the investors will utilize this access more than “occasionally,” I agree that we are not facing into “hurricane-like” proxy conditions that many predict.

    I would also suggest that the impact of this legislation will likely be far more evident on the investor relations side of ledger as proxy access will serve as a wake-up call for Boards and management teams to actively and consistently engage with shareholders to ensure proper alignment between performance and expectations (the IR equivalent of the P/E ratio) as a way to further mitigate any possible proxy issues down the road.

  2. Kara O'Brien
    Posted Thursday, December 2, 2010 at 4:37 pm | Permalink

    Very insightful. It will be interesting to see what happens when all is said and done (hopefully by next summer). On the Securities Law Practice Center, I just posted a great article on proxy access by Brian Breheny, a Partner at Skadden and former Deputy Director of CorpFin. Here is a link: