For All Points-Of-The-View.
Free Enterprise Project's Innovative Shareholder Proposal Tactic Covered Extensively by Wall Street Journal and Charlotte Business Journal.
At today's annual meeting of Duke Energy investors that was held entirely online, the National Center for Public Policy Research's Free Enterprise Project(FEP) – the nation's leading proponent of free-market investor activism – deployed an innovative strategy that blocked an anti-free speech shareholder proposal designed to force Duke Energy to divest itself of pro-business associations.
Securities and Exchange Commission (SEC) rules state that a company needs to only accept one shareholder proposal for its proxy statement if it receives several on the same topic. That rule further states the company must accept the first of those similar proposals it receives. FEP identified Duke Energy and General Electric (GE) as companies that regularly receive anti-free speech proposals from organizations in the liberal As You Sow network. FEP then filed proposals at these companies with similar operative language, but instead suggested Duke and GE educate investors about the benefits of membership in free-market, pro-business organizations. FEP's proposals were both submitted prior to similar liberal proposals, and were therefore published on GE's and Duke's proxy statements – just as FEP intended.
"Today is a good day for free speech and Duke Energy investors," said National Center General Counsel and FEP Director Justin Danhof, Esq., who developed the shareholder proposal tactic. "We were able to block an insidious proposal from gaining traction with Duke's investors. Mercy Investment Services, part of the broader As You Sow Network, was hoping to co-opt Duke's investors into its efforts to defund pro-business groups such as the Business Roundtable, U.S. Chamber of Commerce, National Association of Manufacturers (NAM) and American Legislative Exchange Council (ALEC). We put a stop to that."
In a prepared statement regarding the proposal that was presented at Duke Energy's virtual shareholder meeting, Danhof noted:
We had two goals in filing this proposal. The first goal was to block a shareholder proposal from Mercy Investment Services from making it onto Duke Energy's proxy statement. We succeeded in doing that. The second goal was to encourage the company to stand up for its values and pro-capitalist agenda in the face of attacks from Mercy and its cohorts. We didn't know for sure that Mercy would be the specific group to file the anti-free speech proposal, but we had a good idea it would come from the anti-capitalists in the As You Sow network. So we filed a resolution with similar language, but with a pro-business message. Since the Securities and Exchange Commission has a first-in-time rule, and ours was in first, Mercy's proposal won't see the light of day. Duke's investors should cheer that result.
When Duke Energy's proxy statement was published, Charlotte Business Journal reporter John Downey wrote an article highlighting FEP's tactical success. Under the headline, "How One Conservative Activist is Boxing Out Liberal Groups' Shareholder Proposals at Duke Energy, General Electric Meetings," Downey noted:
A conservative organization dedicated to shareholder activism is trying out a new ploy to pre-empt shareholder proposals by liberal activists by co-opting them at the annual meetings for Duke Energy Corp. and General Electric Co.
In this first attempt, the Washington-based National Center for Public Policy Research has copied verbatim shareholder proposals from last year's annual meeting by Mercy Investment Services and the Philadelphia Public Employee Retirement Services, respectively, that call on the two giant corporations to disclose their annual lobbying costs…
That, of course, may lead to a race to file proposals for future annual meetings. But Danhof is unconcerned. There are about 4,000 publicly traded corporations on major U.S. indexes. He says he can pick and choose which to file his pre-emptive proposals with.
"This is the first year we have done this," he says. "I am not revealing who I make proposals to next year."
The full Charlotte Business Journal article is available at its site (paywall protected).
Wall Street Journal reporter Mara Lemos Stein also covered FEP's tactic. In an April 15th article, she noted:
If you can't beat them, join them – or at least steal their script.
Justin Danhof, a conservative shareholder advocate, is harnessing a regulatory "first-come, first-served" provision to sideline left-leaning investors from proxy ballots by lodging nearly identical proposals, but getting them in first. The tactic is helping Mr. Danhof promote and engage with company management on conservative social-policy issues.
Stein's article noted why FEP's strategy is more important than ever:
Shareholders filed 1,347 resolutions focused on social policy and the environment with Fortune 250 companies in the decade ended in 2015, according to ProxyMonitor.org.
None of them garnered majority shareholder support.
That's starting to change. A proposal seeking greater disclosure of political spending by Fluor Corp. passed in 2016. And last year, fund managers BlackRock Inc. and Vanguard Group voted with the proponents of climate-risk disclosure at Exxon Mobil Corp. and Occidental Petroleum Corp. among others.
The full Wall Street Journal article is available on-line (paywall protected).
Last week, at General Electric's annual shareholder meeting, National Center Vice President David W. Almasi presented FEP's proposal that was used to block an anti-free speech proposal from New York State Comptroller Thomas DiNapoli and the New York State Common Retirement Fund.
Today's meeting is the 16th FEP has participated in during the 2018 shareholder season.
To book an interview with Danhof or another National Center representative, contact Jenny Kefauver at (703) 842-7405 or (703) 477-7476.
Launched in 2007, the National Center's Free Enterprise Project focuses on shareholder activism and the confluence of big government and big business. Over the past four years alone, FEP representatives have participated in over 100 shareholder meetings – advancing free-market ideals about health care, energy, taxes, subsidies, regulations, religious freedom, food policies, media bias, gun rights, workers' rights and other important public policy issues. As the leading voice for conservative-minded investors, FEP annually files more than 90 percent of all right-of-center shareholder resolutions. Dozens of liberal organizations, however, annually file more than 95 percent of all policy-oriented shareholder resolutions and continue to exert undue influence over corporate America.
FEP activity has been covered by media outlets including the New York Times, Washington Post, USA Today, Variety, the Associated Press, Bloomberg, Drudge Report, Business Insider, National Public Radio and SiriusXM. FEP's work was prominently featured in Wall Street Journal writer Kimberley Strassel's 2016 book The Intimidation Game: How the Left is Silencing Free Speech (Hachette Book Group).
Danhof's latest commentary, on the recent Walt Disney shareholder meeting where his actions resulted in Joy Behar's public apology for suggesting Christianity is a mental illness, is available here. Almasi's commentary on character and politics is available here.
The National Center for Public Policy Research, founded in 1982, is a non-partisan, free-market, independent conservative think-tank. Ninety-four percent of its support comes from individuals, less than four percent from foundations and less than two percent from corporations. It receives over 350,000 individual contributions a year from over 60,000 active recent contributors. Contributions are tax-deductible and may be earmarked for the Free Enterprise Project. Sign up for email updates here.
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