Gibson Dunn Discusses Proxy Policy Updates and Action Items for 2018 Annual Meeting

The two most influential proxy advisory firms—Institutional Shareholder Services (“ISS”) and Glass, Lewis & Co. (“Glass Lewis”)—recently released their updated proxy voting guidelines for 2018.  The key changes to the ISS and Glass Lewis policies are described below along with some suggestions for actions public companies should take now in light of these policy changes and other proxy advisory firm developments.  An executive summary of the ISS 2018 policy updates is available here and a more detailed chart showing additional updates to its voting policies and providing explanations for the updates is available here.  The 2018 Glass Lewis Guidelines are available here.

ISS 2018 Proxy Voting Policy Updates

On November 16, 2017, ISS updated its proxy voting guidelines for shareholder meetings held on or after February 1, 2018.  These updates impact ISS policies for the United States, Canada, the United Kingdom, Ireland, Europe, the Nordics Region, Japan, China, Hong Kong, and Singapore.  This client alert reviews the major U.S. policy updates in ISS’s 2018 proxy voting guidelines, which are used by ISS in making voting recommendations on director elections and company and shareholder proposals at U.S. companies.

ISS plans to issue a complete set of updated policies on its website in December 2017.  ISS also indicated that it plans to issue updated Frequently Asked Questions (“FAQs”) on certain of its policies in December, and it has already issued a set of Preliminary FAQs on the U.S. Compensation Policies, which are available here.  In January 2018, ISS will evaluate new U.S. shareholder proposals that are anticipated for 2018 and update its voting guidelines as necessary.

  1. Director Elections
Non-Employee Director Pay

ISS has adopted a new policy on “excessive” non-employee director pay, although the policy will not impact voting recommendations for 2018.  Under the policy, ISS will recommend votes “against” board or committee members responsible for approving or setting non-employee director compensation when there is a recurring pattern (which ISS defines as two or more consecutive years) of “excessive” pay without a compelling rationale or other mitigating factors to justify the compensation.  While ISS does not define what constitutes “excessive” pay, it notes that it has identified “cases of extreme outliers relative to peers and the broader market.”

For 2018, ISS will continue to rely on its current policy to guide its vote recommendations.  Under this policy, patterns of excessive compensation may call into question directors’ independence and result in ISS including cautionary language in its proxy analysis.  After 2018, negative voting recommendations would be triggered only after ISS identifies a pattern of excessive pay in consecutive years.

Pledging Company Stock

In prior years, ISS has addressed pledging of company stock through its “governance failures” policy.  Under this policy, ISS issued negative voting recommendations for members of the committee charged with risk oversight based on “significant” pledging of company stock.  For 2018, ISS has implemented an explicit policy on problematic pledging that reflects its current approach to this issue.  Under this policy, ISS recommends votes “against” the members of the committee responsible for overseeing pledge-related risks, or the full board, where a “significant” level of executive or director pledging raises concerns.  In making its voting recommendations, ISS will consider the following factors:

  • the existence of an anti-pledging policy that prohibits future pledging activity and is disclosed in the proxy statement;
  • the magnitude of pledged shares in the aggregate in terms of total common shares outstanding, market value, and trading volume;
  • disclosure of the progress, or lack thereof, in reducing the magnitude of aggregate pledged shares over time;
  • proxy statement disclosure that the shares subject to stock ownership and holding requirements do not include pledged company stock; and
  • any other factors that are relevant.
Board Diversity

ISS applies four fundamental principles when determining its votes for director nominees: accountability, responsiveness, composition, and independence.  ISS expanded its “composition” principle to include a specific statement about the benefits of boardroom diversity, which states that “[b]oards should be sufficiently diverse to ensure consideration of a wide range of perspectives.”  In addition, ISS stated that it will not consider a lack of gender diversity in making voting recommendations, but it will highlight in its voting analysis if a board has no female directors.

Poison Pills

ISS significantly updated its policy for poison pills in an effort both to simplify the policy and reinforce its views that shareholders should timely approve poison pills.   Under the updated policy, ISS will recommend votes “against” all board nominees, every year, at a company that has a “long-term” poison pill (a pill with a term greater than one year) that was not approved by shareholders.  This policy reflects several changes.   First, commitments to put a newly-adopted long-term poison pill to a vote at the following year’s annual meeting will no longer be considered a mitigating factor that would exempt directors from negative voting recommendations.  Second, the frequency of adverse recommendations will increase.  Under its current policy, at companies with annual director elections, ISS only recommends “against” all board nominees every three years, while ISS will now recommend votes “against” all board nominees every year.  Third, companies with 10-year poison pills that were grandfathered into the current policy will no longer be grandfathered and will receive adverse voting recommendations.  According to ISS, this will impact about 90 companies.  With grandfathering gone, ISS has also removed its provisions for pills with deadhand and slowhand provisions since the few remaining deadhand/slowhand pills are not shareholder-approved and would be covered by the updated policy.

ISS is maintaining its current policy for short-term poison pills (pills with a term of one year or less).  ISS will assess these on a case-by-case basis and focus its review on the company’s rationale for adopting the poison pill (instead of its governance and track record), as well as other relevant factors such as a commitment to put any renewal to a vote.

ISS’s current policy on renewals and extensions of existing pills remains unchanged.  These will not receive case-by-case analysis, but rather, will result in adverse voting recommendations for all directors.

  1. Shareholder Proposals
Gender Pay Gap

ISS adopted a new policy focused on shareholder proposals that target the gender pay gap by requesting reports from companies on either (i) their pay data, by gender, or (ii) their policies and goals aimed at reducing existing pay gaps (if any).  ISS did not previously have a policy on this issue, and the new policy is intended to provide more clarity about ISS’s approach, given the expectation that the number of shareholder proposals on this subject will grow.  The new policy reflects a case-by-case approach to these proposals and will consider the following four factors:

  • current company policies and disclosures regarding diversity and inclusion policies and practices;
  • the company’s compensation philosophy and its use of “fair and equitable compensation practices”;
  • any recent controversies, litigation or regulatory actions in which the company was involved related to gender pay gap issues; and
  • any lag between the company and its peers with regard to reporting on gender pay gap policies or initiatives.
Climate Change Risk

ISS has also updated its policy on shareholder proposals relating to climate change risk, in light of recommendations from The Task Force on Climate-Related Financial Disclosures (“TCFD”) that were finalized in 2017.  Under its current policy, ISS generally supports shareholder proposals asking that a company disclose information on the risks it faces related to climate change, and the policy provides examples of those risks.  According to ISS, the updated voting policy “better aligns” with the TCFD recommendations, which seek transparency around the roles of the board and management in assessing and managing climate-related risks and opportunities.  In this regard, the updated policy applies not only to shareholder proposals seeking disclosure about “financial, physical, or regulatory risks” that a company faces related to climate change, but also proposals addressing “how the company identifies, measures, and manages such risks.”

  1. Executive Compensation
Pay-for-Performance Analysis

Beginning in 2018, ISS will incorporate the Relative Financial Performance Assessment into its quantitative pay-for-performance analysis.  This metric compares a company’s rankings to a peer group with respect to Chief Executive Officer (“CEO”) compensation, and financial performance in three or four metrics, each as measured over three years.  The Preliminary FAQs on the U.S. Compensation Policies identify the metrics that ISS plans to use for each industry and how the metrics are weighted.  ISS intends to provide further specifics on the updated quantitative analysis in a white paper, but has indicated that the Relative Financial Performance Assessment would operate as a secondary quantitative screen that could move a company from “medium” to “low” concern or from “low” to “medium” concern.  The 2018 updates also clarify that the multiple of the CEO’s total pay relative to the peer group median is measured over the most recent fiscal year, which is consistent with ISS’s current policy.

Board Responsiveness to Advisory Votes on Executive Compensation

When a company receives support below 70% of votes cast on its last say-on-pay proposal, ISS will continue to make voting recommendations on a case-by-case basis the following year both for the say-on-pay proposal and the election of compensation committee members.  One of the elements that ISS currently considers is the board’s response to investor concerns, including disclosure of engagement efforts with major institutional investors on the reasons for their low support of the proposal.  For 2018, ISS has expanded the factors it will consider in assessing whether the board’s response to investor concerns was sufficiently robust.  In particular, ISS will consider disclosures about the timing and frequency of engagements with shareholders, and whether independent directors participated.  In this regard, the voting policy updates explicitly state that “[i]ndependent director participation is preferred.”  ISS will also consider disclosure about specific concerns voiced by shareholders that voted against the say-on-pay proposal, as a way of assessing whether subsequent changes made by the company were in fact responsive to those concerns.  Finally, in addition to considering whether the company made any changes in response to shareholder concerns, ISS will also consider the nature of those changes and whether they were meaningful.

  1. Other Changes

The voting policies also include the following updates:

  1. Director independence criteria:  ISS is changing its terminology on director classifications—from “inside” to “executive” and from “affiliated outside” to “non-independent non-executive.”  In addition, directors who were previously considered “inside” directors due to ownership of more than 50% of a company’s stock will be moved to the “non-independent non-executive” category.  According to ISS, this change is purely to standardize terminology across markets and will not impact voting recommendations.
  2. Attendance for newly appointed directors:  ISS is exempting new directors who have served for only part of the year from its attendance policy, under which it generally recommends votes “against” directors who attend less than 75% of meetings unless the proxy statement includes “an acceptable reason” for the absences.  Under the current policy, new directors are assessed case-by-case and disclosure about schedule conflicts is viewed as an acceptable reason for poor attendance because the meeting schedule would have been set before the director joined the board.  Under the updated policy, ISS will exempt new directors from the attendance policy, rather than expecting disclosure about scheduling conflicts.
  3. Restrictions on shareholders’ ability to amend the bylaws:  Under its current policies, ISS recommends votes “against” members of the nominating/governance committee if a company’s charter places “undue” restrictions on shareholders’ right to amend the company’s bylaws.  These restrictions include prohibitions on the submission of binding shareholder proposals or ownership requirements in excess of those imposed by Rule 14a-8.  ISS has expanded this policy to address situations where a company’s bylaws (or the charter) include these types of restrictions.

Glass Lewis 2018 Proxy Voting Policy Updates

On November 22, 2017, Glass Lewis released its updated proxy voting policy guidelines for 2018 in the United States and Canada and for shareholder proposals.  This client alert reviews the major updates to the U.S. guidelines, which provide a detailed overview of the key policies Glass Lewis applies when making voting recommendations on proposals at U.S. companies and on shareholder proposals.  The key changes in the 2018 guidelines are summarized below.

  1. Board Diversity

Glass Lewis has added a new section to its voting guidelines on how it considers gender diversity on boards of directors.  Glass Lewis affirmed that, as in prior years, it will continue to review board composition closely, and it may note as a concern instances where it believes the board lacks diversity, including those boards that have no female directors.  For 2018, Glass Lewis will not make voting recommendations solely on the basis of a board’s diversity, although this will be one of several factors Glass Lewis considers when evaluating a company’s oversight structure.  This will change in 2019, however, when Glass Lewis will begin recommending votes “against” the nominating/governance committee chair at companies with no female directors.  In those instances, Glass Lewis may also recommend votes “against” other nominating/governance committee members as well, depending on factors such as the company’s size, industry, and governance profile.

The voting guidelines also state that Glass Lewis will “carefully review a company’s disclosure of its diversity considerations” in making voting recommendations.  Glass Lewis may not recommend votes “against” directors when the board has provided a “sufficient rationale” for the absence of any female board members or there is disclosure of a plan to address the board’s lack of diversity.

  1. Dual-Class Share Structures

Glass Lewis has also added a new section to its voting guidelines on how it will consider dual-class share structures—different classes of stock that may differ in voting or economic rights—in analyzing various aspects of a company’s governance.  In this section, Glass Lewis explicitly states that dual-class voting structures “are typically not in the best interests of common shareholders” and that “[a]llowing one vote per share generally operates as a safeguard for common shareholders by ensuring that those who hold a significant minority of shares are able to weigh in on issues set forth by the board.”

Consistent with these principles, Glass Lewis “generally considers a dual-class share structure to reflect negatively on a company’s overall corporate governance.”  It will typically recommend that shareholders vote in favor of recapitalization proposals to eliminate dual-class share structures and “against” proposals to adopt a new class of common stock.

For companies that have done an IPO or spin-off in the past year, Glass Lewis has not changed its overall approach, which is that it generally refrains from making voting recommendations based on a company’s governance practices for the first year the company is public.  However, Glass Lewis evaluates newly public companies to determine whether the rights of shareholders are being “severely restricted indefinitely” based on a list of factors and may recommend votes “against” directors where it determines this is the case.  The 2018 voting policy updates add the presence of a dual-class share structure to this list of factors.

The discussion on dual-class share structures also addresses how Glass Lewis will assess board responsiveness to a significant shareholder vote (discussed in the next section).

  1. Board Responsiveness to Significant Shareholder Votes

Under Glass Lewis’s current policy on board responsiveness, Glass Lewis evaluates the board’s response on a case-by-case basis in situations where 25% or more of a company’s shareholders vote contrary to the company’s recommendation on any proposal, including the election of director nominees, company proposals and shareholder proposals.  For 2018, Glass Lewis is reducing this threshold to 20%, because it believes a 20% threshold is significant enough to warrant consideration of board responsiveness, especially when a proposal addresses compensation or director elections.  Accordingly, when 20% or more of the votes cast (excluding abstentions and broker non-votes) on a proposal (including the election of directors) are contrary to management’s recommendation, Glass Lewis will evaluate whether or not the board responded appropriately following the vote.  As under the current policy, the 20% threshold alone will not automatically generate a negative voting recommendation from Glass Lewis on director nominees or future proposals.  However, it may be a contributing factor to Glass Lewis’s recommendation to oppose the board’s voting recommendation.

For companies with dual-class share structures,  Glass Lewis will review with care the approval or disapproval levels of shareholders that are unaffiliated with the company’s controlling shareholders when making a determination as to whether board responsiveness is warranted.  Boards are expected to exhibit an “appropriate” level of responsiveness to voting results where a majority of unaffiliated shareholders either supported a shareholder proposal or opposed a company proposal.

  1. Virtual Shareholder Meetings

Recognizing that the number of companies adopting virtual-only meetings is “small but growing,” Glass Lewis has adopted a new policy on virtual meetings.  Glass Lewis considers virtual meeting technology “a useful complement” to in-person shareholder meetings because of its ability to expand the participation of shareholders that cannot attend those meetings in-person (resulting in a “hybrid meeting”).  At the same time, Glass Lewis states that virtual-only meetings could curb shareholders’ ability to have meaningful discussions with company management.

In 2018, Glass Lewis will not make voting recommendations solely on the basis that a company has chosen to hold a virtual-only meeting.  Instead, when analyzing the governance profiles of companies that hold virtual-only meetings, Glass Lewis will look for “robust” proxy statement disclosure that makes clear that shareholders will have the same ability to participate in the virtual-only meeting that they would have at an in-person meeting.  This policy will change in 2019.  Beginning in 2019, Glass Lewis will generally recommend votes “against” the members of the nominating/governance committee where the company intends to have a virtual-only shareholder meeting and fails to provide the disclosure described above.

  1. Overboarded Directors

Glass Lewis did not change its director overboarding policy for 2018, but did clarify how the policy will apply to directors who are serving in executive roles but are not CEOs.  Under Glass Lewis’s policy, it generally recommends a vote “against” (i) any director that serves as a public company executive officer while also serving on more than two total public company boards and (ii) any other director serving on more than five total public company boards.

In determining whether to issue a negative voting recommendation, Glass Lewis considers whether service in excess of these limits may impact a director’s ability to devote sufficient time to board duties based on a number of factors, such as the size and location of the other companies where the director serves on the board and the director’s board duties at those companies.  For directors who are executives—but not CEOs—of public companies, the 2018 policy updates clarify that Glass Lewis will evaluate the specific duties and responsibilities of the executive’s role.

  1. CEO Pay Ratio

Beginning in 2018, Glass Lewis’s Proxy Paper reports will include a company’s CEO pay ratio as an additional data point.  However, Glass Lewis notes in its 2018 voting policies that although the pay ratio can provide investors with more insight when assessing the pay practices at a company, pay ratio will not be a determinative factor in Glass Lewis’s voting recommendations at this time.

  1. Pay for Performance

Glass Lewis’s pay-for-performance model, which ranks companies using a grade system of “A,” “B,” “C,” “D,” and “F,” did not change this year and will continue to be used to guide Glass Lewis’s evaluation of the effectiveness of compensation committees.  Where a company has a pattern of failing Glass Lewis’s pay-for-performance analysis, Glass Lewis will generally recommend a vote “against” that company’s compensation committee members.  The voting policy updates for 2018 provide clarification on the grading system by adding more detail on each of the grades.  Specifically:

  • The letter “C” “does not indicate a significant lapse,” but instead “identifies companies where the pay and performance percentile rankings relative to peers are generally aligned.”  This suggests that a company does not overpay or underpay relative to its comparator group.
  • The grades “A” and “B” are also given to companies that align pay with performance, but indicate lower compensation levels relative to the market and to company performance.  A “B” grade stems from slightly higher performance levels in comparison to market peers while executives earn relatively less than peers.  An “A” grade shows that a company is paying significantly less than peers while outperforming the comparator group.
  • A grade of “D” or “F” reflects high pay and low performance relative to the comparator group, with a “D” reflecting a disconnect between pay and performance and an “F,” a significant disconnect.  An “F” indicates that executives receive significantly higher compensation than peers while underperforming the market.
  1. Shareholder Proposals
Climate Change

Glass Lewis has expanded its policy on shareholder proposals relating to climate change.  Glass Lewis will generally recommend “for” shareholder proposals seeking disclosure of information about climate change scenario analyses and other climate change-related considerations at companies in certain extractive or “energy-intensive” industries that have increased exposure to climate change-related risks.  Glass Lewis generally supports the disclosure recommendations of The Task Force on Climate-Related Financial Disclosure (“TCFD”), but will conduct a case-by-case review of proposals requesting that companies report in accordance with these recommendations.  When evaluating proposals asking for increased disclosure, Glass Lewis will evaluate:

  • the industry in which a company operates;
  • the company’s current level of disclosure;
  • the oversight afforded to issues related to climate change;
  • the disclosure and oversight afforded to climate change-related issues at peer companies; and
  • whether other companies in the company’s market or industry have provided disclosure that is aligned with the TCFD’s recommendations.
“Fix It” Proxy Access Shareholder Proposals

Glass Lewis has expanded its voting policy on proxy access shareholder proposals to address “fix it” proposals.  Shareholders have submitted “fix it” proposals to companies that already have proxy access in an effort to change specific terms of existing proxy access bylaws, such as the number of shareholders that can aggregate their shares to submit a proxy access nominee.

Glass Lewis will evaluate these proposals on a case-by-case basis and will review a company’s existing bylaws in order to determine whether they “unnecessarily restrict” shareholders’ ability to use proxy access.  In cases where companies have adopted proxy access bylaws that “reasonably conform with broad market practice,” Glass Lewis will generally oppose “fix it” proposals.  Where a company has “unnecessarily restrictive” provisions, Glass Lewis “may consider support for well-crafted ‘fix it’ proposals that directly address areas of the company’s bylaws that [Glass Lewis] believe[s] warrant shareholder concern.”

Dual-Class Share Structures

Glass Lewis has codified its position on shareholder proposals asking companies to eliminate their dual-class share structures and will generally recommend that shareholders vote “for” these proposals.

Actions Public Companies Should Take Now

  • Evaluate your company’s practices in light of the revised ISS and Glass Lewis proxy voting guidelines:  Companies should consider whether their policies and practices, or proposals expected to be submitted to a shareholder vote in 2018, are impacted by any of the changes to the ISS and Glass Lewis proxy voting policies.  For example, companies should consider whether their non-employee director compensation has been previously deemed “excessive” by ISS and what mitigating factors or support can be provided to explain higher-than-average compensation in the 2018 proxy statement.
  • Consider enhancing your proxy disclosures on matters including board diversity and shareholder engagement:  Companies should consider whether there is additional information they can provide in the proxy statement to emphasize the diversity of the board, particularly with respect to gender and ethnicity.  Boards that have more work to do on diversity should be aware that this is likely to be a continued area of focus, not just for ISS and Glass Lewis but for institutional investors as well.  Regardless of the level of support a company received for its say-on-pay proposal, companies should evaluate their disclosures about shareholder engagement and consider whether they can say more about their engagements on executive compensation and on other matters.
  • Enroll in the Glass Lewis 2018 Issuer Data Report program:  Glass Lewis has not yet opened enrollment for its 2018 Issuer Data Report (“IDR”) program.  Companies that have previously enrolled will be automatically notified when the 2018 enrollment period begins, but companies that have not enrolled may sign up for notifications regarding the open enrollment period here.  The IDR program enables public companies to access (for free) a data-only version of the Glass Lewis Proxy Paper report prior to Glass Lewis completing its analysis and recommendations relating to public company annual meetings.  Glass Lewis does not provide drafts of its voting recommendations report to issuers it reviews, so the IDR is the only way for companies to confirm the accuracy of the data before Glass Lewis’s voting recommendations are distributed to its clients.  Moreover, unlike ISS, Glass Lewis does not provide each company with complimentary access to the final voting recommendations for the company’s annual meeting.  IDRs feature key data points used in Glass Lewis’s corporate governance analysis, such as information on directors, auditors and their fees, summary compensation data and equity plans, among others.  The IDR is not a preview of the final Glass Lewis analysis as no voting recommendations are included.  Each participating public company receives its IDR approximately three weeks prior to its annual meeting and generally has 48 hours to review the IDR for accuracy and provide corrections, including supporting public documents, to Glass Lewis.  Participation is limited to a specified number of companies, and enrollment is on a first-come, first-served basis.  To learn more about the IDR program and sign up to receive a copy of the 2018 IDR for your company, go to https://www.meetyl.com/ issuer_data_report.

This post comes to us from Gibson, Dunn & Crutcher LLP. It is based on the firm’s client alert, “Proxy Advisory Firms: Policy Updates and Action Items for 2018 Annual Meeting,” dated December 4, 2017, and available here.