Recently, Hunton Andrews Kurth launched a new blog, C-Suite Compensation Center. The blog will discuss compensation issues that are increasingly complex due to evolving laws, changing administrative rules and increasing shareholder activity.

The members of our Compensation practice group are multi-disciplinary within the various substantive areas of compensation. As multi-disciplinary practitioners, we take a holistic and full-service approach to compensation matters that considers all substantive areas of compensation.

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At the end of February, the SEC staff issued a No-Action Letter to Dunkin’ Brands Group, Inc., permitting the company to exclude a shareholder proposal under Rule 14a-8(i)(5), often referred to as the economic relevance exception. This is the first no-action relief granted under the rule since the SEC issued Staff Legal Bulletin No. 14I (“SLB 14I”) on November 1, 2017, and it could have implications for other retailers seeking to exclude shareholder proposals under the rule in the future. Continue Reading SEC Staff Permits Exclusion of Shareholder Proposal Under Economic Relevance Exception

Once the sole province of hedge funds and special interest groups, many mainstream institutional investors have now also embraced a more activist perspective with regard to their portfolio companies. In his most recent letter to CEOs, Blackrock chairman Larry Fink advocated in favor of a series of Environmental-Social-Governance (“ESG”) issues and rhetorically asked companies, “What role do we play in the community?” Other institutional money managers, like New York City’s Comptroller Scott Stringer, have also accelerated their ESG-focused shareholder activism in recent years, targeting well-known retailers such as Kroger, Walmart and Home Depot in the process.  Continue Reading Shareholder Activism at Retailers in 2018

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