The SEC's Shareholder Proposal Rule

Cox, James D.; Thomas, Randall S.

In this Article, we take advantage of this Symposium’s goals to think broadly about the future of Rule 14a-8 of the Securities Exchange Act of 1934, the shareholder proposal rule. We set forth a vision for the rule to address boardroom insularity by likening the shareholder proposal rule as the public square for shareholders. The existence of such a forum would redound to the benefit of investors, officers, and boards of directors as a fount of current and useful information about their investors’ and stakeholders’ concerns. 
We therefore rethink the mission of Rule 14a-8. In doing so, we explore whether it can provide a ready-made corporate public square for all companies; that is, rather than view Rule 14a-8 as purely enabling shareholders to sample the beliefs of their fellow shareholders, we perceive a broader social value. We cast Rule 14a-8 as a mechanism for assisting corporate directors generally, meaning not just those on the board of the corporation that is the target of a proposal, but also directors at all corporations, in gathering valuable information to help them better perform their duties. 
In making these claims, we fully accept the functional view that Rule 14a-8 addresses itself to shareholders facing high barriers to their efforts to communicate with their directors and among themselves by providing them with an inexpensive vehicle for making their views known. We also believe it is equally important to understand that the message derived from proposals, and the votes they garner, is also heard by managers of other companies. We see that the temperature being taken through Rule 14a-8 is not just that of the proponent but a broad group of the company’s stockholders that likely is reflective of societal beliefs. 
Construing Rule 14a-8 to facilitate a public square will weaken the social and psychological forces that can insulate management and the board from alternative perspectives regarding the firm’s objectives. Board directors often live cloistered lives and naturally identify with the firm’s successes and the operating practices. Thus, as their length of service increases, directors risk failing to broaden their perspectives to reflect the constellation of views held by the shareholders. Overall, a public square could help directors preserve and even gain a far richer and aligned perspective. 
Moreover, as opposed to one-off meetings with portfolio companies, voting on shareholder proposals provides both the chance to discern the views of other financial institutions and the opportunity to present a cohesive voice across a group of investors behind a recommended course of action set forth in a proposal. 
To be sure, some conditions should be imposed on proponents to guard against abusive proposals. We review the data bearing on the extent that a small group of investors, so-called “gadflies,” produce a disproportionate number of the poorly tailored proposals and hence are a distraction, and we believe that the SEC should study whether their proposals are associated with negative returns. 
We conclude that recent SEC amendments to Rule 14a-8 are ill-advised. In making these changes, the SEC assessed the value of Rule 14a-8 by narrowly focusing on votes garnered by proposals. We argue the worth of this rule has many more features than the outcome of the votes cast in favor of a proposal. 


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December 7, 2022