In recent years, publicly traded retailers have experienced a significant uptick in interest from investors focused on Environmental, Social and Governance (“ESG”) issues. On April 23, 2018, the Department of Labor (“DOL”) released Field Assistance Bulletin 2018-01 (the “FAB”). The FAB applies to certain retirement plan fiduciaries who make investment and proxy voting decisions that derive from ESG concerns, and may impact investor behavior at public retailers.

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Recently, the Securities and Exchange Commission (“SEC”) allowed Apple Inc. to exclude a shareholder proposal from its proxy statement that requested that Apple “produce a report assessing the climate benefits and feasibility of adopting store-wide requirements for having all retail locations implement a policy on keeping entrance doors closed when climate control (especially air-conditioning during warm months) is in use.”  Continue Reading Environmental Activist Submits Shareholder Proposal on Climate Control

On November 1, 2017, the staff of the Securities and Exchange Commission (“SEC”) issued Staff Legal Bulletin No. 14I, which provides additional guidance for public companies (including retailers) seeking to exclude certain shareholder proposals from their proxy materials. Under this bulletin, the SEC staff now expects boards of directors to analyze shareholder proposals before companies make no-action requests to exclude such proposals from proxy materials under Rule 14a-8(i)(7) (the ordinary business exception) or Rule 14a-8(i)(5) (the economic relevance exception). Those no-action requests should include a discussion reflecting the board’s analysis and the specific processes it employed to reach a well-informed and well-reasoned conclusion. Additionally, new documentation is required of proponents for submissions of shareholder proposals by proxy, and the staff has provided further guidance on the use of images and graphs by proponents in shareholder proposals. Publicly held retailers regularly receive shareholder proposals involving each of these four issues, and the new bulletin suggests that companies may be more successful in excluding related proposals going forward if they comply with new requirements laid out in the bulletin.

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On September 8, 2017, New York City Comptroller Scott Stringer and the New York City Pension Funds announced the second phase of their Boardroom Accountability Project, which will focus on board diversity and composition. Stringer sent a letter to the nominating and governance committee chairs of 151 portfolio companies held by the New York City Pension Funds, requesting board engagement regarding the director refreshment process and disclosure of a director qualification matrix that identifies directors’ relevant skills and experience and their gender and race/ethnicity. The list of companies included several major retailers and consisted of companies that have adopted proxy access in response to shareholder proposals from the NYC Pension Funds and those where the NYC Pension Funds’ proxy access proposals received majority support in 2017.  Continue Reading New York City Comptroller Launches Boardroom Accountability Project 2.0

When say-on-pay (i.e., shareholders with the right to vote on the remuneration of executives) was introduced under the Dodd-Frank Wall Street Reform and Consumer Protection Act, there was a requirement that companies conduct say-on-pay frequency votes every six years for shareholders to decide whether say-on-pay votes should be held every one, two or three years. Companies first held say-on-pay frequency votes in 2011, so for many companies the 2017 proxy season is the first time that shareholders have revisited the matter since then. Continue Reading Shareholders Show Strong Preference for Annual Say on Pay Votes

As media outlets recently highlighted Equal Pay Day on April 4, 2017, publicly held retailers should be aware that the focus on pay equity is becoming increasingly popular among activist shareholders. This proxy season, more than 20 publicly traded companies are facing shareholder proposals at their annual meetings to vote on whether they should research and report on pay gaps by gender and race. Continue Reading An Increasing Number of Proxy Challenges Focus on Equal Pay

A recent report by MSCI examined proxy access among the 565 United States incorporated companies in the MSCI USA Index. In two years, the percentage of companies with proxy access grew from less than 1 percent to 41.2 percent as of December 14, 2016. Additionally, of the 110 companies targeted by the New York City Comptroller’s Office and the New York City pension funds’ Boardroom Accountability Project during the 2015 and 2016 proxy seasons, 90.9 percent have adopted proxy access. Although these numbers show a substantial increase in adoption by companies, making the push for proxy access appear successful, the report notes that the companies adopting proxy access are mostly ones that already have fairly strong shareholder rights. Continue Reading Companies with Long-Tenured Directors May Be Next Targets for Proxy Access

Earlier this month, proxy advisory firms Institutional Shareholder Services (“ISS”) and Glass Lewis recommended that shareholders vote for retailer Chico’s FAS Inc.’s (“Chico’s”) board of director candidates, instead of the two candidates nominated by activist investor Barington Capital Group LP (“Barington”). This prompted Barington to abandon its proxy fight. Continue Reading In a Rare Move, Proxy Advisory Firms Side With Chico’s Against Activist Investors

The 2016 proxy season is in full swing, and similarly to 2015, the number of shareholder proposals has increased. According to a report by The Manhattan Institute’s Proxy Monitor, for Fortune 250 companies with annual meetings scheduled on or before April 30, there was a 7.5 percent increase in shareholder proposals compared to last year. Many of these proposals involve environmental, political and social issues, among others. Continue Reading With 2016 Proxy Season Underway, Some Trends from 2015 Continue

In 2015, there was a record number of activist shareholder campaigns in the United States. Although activist hedge funds targeted companies across numerous industries, several retail companies found themselves in activists’ crosshairs. These included companies such as fast-food restaurant chains, convenience store operators, auto parts retailers and department store retailers.

Continue Reading Activist Investing in the Retail Sector