Milloy in Wall Street Journal on Biden SEC rollback of Trump SEC anti-fraud provisions

The Wall Street Journal editorialized last week about the Biden Securities and Exchange Commission (SEC) move to rollback anti-fraud rules for proxy advisory firms that had been issued by the Trump SEC.The only problem with the WSJ editorial is that it provided no specific example to make its case. Fortunately, my letter in today’s WSJ does just that regarding my 2020 climate greenwashing shareholder proposal filed with ExxonMobil. Please support!

Biden SEC chairman Gary Gensler wants to give proxy advisor firms carte blanche to commit fraud to advance the left’s political agenda.

Please support!

Here is the Wall Street Journal editorial (Web | PDF). My letter is below.

While punishing businesses it doesn’t like, the Biden Administration is moving fast to ease regulation on those that advance its climate goals. Witness how Mr. Biden’s new Securities and Exchange Commission Chairman Gary Gensler is moving to roll back the regulation of proxy advisory firms.

The SEC announced this month that it will suspend enforcement of new rules issued under former Chairman Jay Clayton that subjected proxy advisory firms to the same anti-fraud rules as public companies and required them to disclose their business conflicts. Mr. Gensler has directed SEC staff to consider revising the rules.

Large institutional investors rely on recommendations by the two giant proxy advisers, Glass Lewis and Institutional Shareholder Services (ISS), since they don’t want to take the time to analyze the tens of thousands of shareholder ballot items. Instead, they pay the advisory firms to research companies, tell them how to vote on issues, and often cast ballots in lock-step with recommendations.

Institutional investors are three times more likely to cast votes in proxy elections than are retail investors. A 2018 study by the American Council for Capital Formation found that 175 asset managers, controlling more than $5 trillion in assets, voted with ISS more than 95% of the time. The result is that the proxy advisers play an outsize role in U.S. corporate governance.

Proxy advisers “are effectively our largest shareholders, despite having no direct stake in Exxon Mobil’s success,” the oil and gas giant noted in a public comment last year responding to Mr. Clayton’s proposed rule-making. Glass Lewis and ISS along with public pension funds assisted hedge fund Engine No. 1’s boardroom coup at Exxon last month.

“We believe Engine No. 1 has presented a compelling case that, without a more concerted response and well-developed strategy for confronting the business risks and challenges related to the global energy transition, Exxon’s returns, cash flow and dividend, and thus its shareholder value, are increasingly at threat,” Glass Lewis wrote.

Proxy firms offer opinions to clients that are supposedly based on industry research, though they often don’t disclose their sources. Nor do they detail many of their own conflicts of interest—for instance, whether their clients include Engine No. 1 and public pension funds. Both claim to disclose business conflicts from clients that account for 5% or more of their total annual revenues.

Yet since the firms have more than a thousand clients, no single one is likely to account for that much. ISS also provides consulting services to companies seeking to win shareholder votes. That’s like teachers selling tutoring services to their students on the side. ISS has also been growing its ESG consulting business, which benefits from activist corporate campaigns.

Mr. Clayton’s rules defined proxy advisory recommendations as “solicitations” under securities laws. So firms that make factual errors and misleading statements could be sued like public companies. Advisers would also have to disclose their conflicts of interest. The rules took effect last November, but Mr. Clayton gave the firms until this December to get into compliance.

Government pension funds and progressive activists have fiercely opposed the rules since proxy advisers augment their power over public companies. Now Mr. Gensler is giving the advisory firms a pass as he seeks to unwind the rules. Democrats think monopolies are fine if they serve their policy goals.

Here is my letter in today’s WSJ (Web | PDF)

It’s a shame that the Biden Securities and Exchange Commission will no longer enforce Trump-era antifraud and conflict-of-interest provisions against proxy advisers, (“Gensler Blesses the Proxy Duopoly,” Review & Outlook, June 24). Here’s an example of why it should.

In 2020 I filed a shareholder proposal with Exxon Mobil requesting a “greenwashing audit”—a cost-benefit-analysis report on the company’s climate-related expenditures. Greenwashing is the expenditure of shareholder assets ostensibly on environment-related activity but actually undertaken merely to improve the company’s or management’s public image.

As managements usually do with shareholder proposals, Exxon Mobil asked the SEC for permission to exclude my proposal from its proxy materials by claiming, among other things, that it was already doing what my proposal requested. I disputed Exxon Mobil’s claim, the SEC staff agreed with me, and the company’s request to exclude my proposal was denied.

As the shareholder meeting approached, I wasn’t surprised to see that climate-activist Institutional Shareholder Services, a major proxy firm, backed Exxon Mobil management’s recommendation against my proposal. But I was stunned to see that ISS repeated the SEC-dismissed claim that Exxon Mobil already did the report that I had requested.

I was never interviewed nor did ISS appear to have reviewed the SEC public record of my proposal. ISS merely parroted Exxon Mobil management’s SEC-dismissed rationale for opposing my proposal. When I complained, ISS basically told me to go pound sand. So ISS misled its subscribers on my proposal, which then went down to defeat with the help of ISS’s comments.

Under the Biden SEC, ISS and other proxy advisers will be able to mislead their subscribers with impunity.

Steve Milloy
Potomac, Md.

Appeared in the July 1, 2021, print edition.

As a final comment, at the 2021 ExxonMobil meeting, my shareholder proposal garnered 5% of the vote. While at first glance that may not seem like much, it really is. ExxonMobil is 80% owned by institutions — which always vote how management and/or proxy advisors recommend. Since both ExxonMobil management and the proxy advisors are pushing the climate agenda, my proposal had already lost 80% of the total shareholder vote. But my proposal did garner 25% of the individual shareholder vote — and many individual shareholders simply vote how management recommends. If the system was designed for informed shareholder voting, my proposal would easily pass.


July 2, 2021 at 02:30AM

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