New SEC Ruling on Shareholder Resolutions

By Michael Kramer

During the recent SRI in the Rockies conference in late October 2009, the leading social investment professionals in the industry heard from the chief legal counsel to SEC Commissioner Luis Aguilar about an exciting ruling that allows the filing of shareholder resolutions that address the financial risks of corporate activities in environmental and social areas. This is a huge victory for the SRI industry, which organized an extensive campaign to reverse the Bush Administration’s SEC decision to disallow such resolutions on ESG issues. The social investment industry wrote a December 2008 letter to the incoming Obama Administration that “effective disclosure of these issues through the proxy process can lead to better anticipatory action by corporations such as the control of greenhouse gases and the development of safer alternative materials.”

While most shareholder resolutions, particularly those that address issues surrounding climate change, merely ask companies to conduct analyses of the risks associated with global warming, the Bush Administration saw this as interfering with management. But in a stark reversal, the SEC stated, “We have recently witnessed a marked increase in the number of no-action requests in which companies seek to exclude proposals as relating to an evaluation of risk,” but “our application of the analytical framework may have resulted in the unwarranted exclusion of proposals that relate to the evaluation of risk but that focus on significant policy issues.”  As such, the SEC stated, “The fact that a proposal would require an evaluation of risk will not be dispositive of whether the proposal may be excluded.” What still needs to be determined, however, is whether the particular issue contained in a given shareholder resolution meets the threshold for consideration under the new ruling. In the absence of specific criteria, SEC staff will be left to make subjective determinations of what is appropriate or not within the social policies suggested in shareholder resolutions.

Michael Kramer is a Managing Partner of Natural Investments LLC and the Director of Social Research

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