Proxy Advisory Firms Issue 2023 Voting Guidelines

Alert

21 December 2022

25 min read

Maia Gez |

Scott Levi |

Michelle Rutta |

Melinda Anderson |

Danielle Herrick

Institutional Shareholder Services ("ISS") and Glass Lewis & Co. LLC ("Glass Lewis"), the two major proxy advisory firms, recently issued their updated proxy voting guidelines for the 2023 proxy season.¹ These policy updates provide early insight into the upcoming 2023 proxy season due to the influence that the proxy advisory firms can have on voting results for proxy agenda items. Key updates and new policies that will be important to consider as you prepare for the 2023 proxy season are summarized below.

ISS's new policies are effective for meetings on or after February 1, 2023. Glass Lewis' new policies are effective for meetings on or after January 1, 2023.

Key updates are described below. For a full list of updates and clarifications, see Appendix A.

Officer Exculpation

Both ISS and Glass Lewis added new voting guidelines in response to the Delaware General Corporation Law's amended Section 102(b)(7), which authorizes corporations to limit or eliminate personal liability for certain officers for breach of fiduciary duty of care claims. Companies that are considering adopting such provisions in their charters should consider these new policies when drafting and presenting their proposals.

ISS – ISS will vote case-by-case on proposals to adopt officer exculpation provisions, considering the stated rationale for the proposed change.² ISS will use its existing policy on director and officer indemnification and liability provision, and vote for proposals providing such expanded coverage in cases when an officer's legal defense was unsuccessful if both of the following apply: (i) the individual was found to have acted in good faith and in a manner that the individual reasonably believed was in the best interests of the company; and (ii) the individual’s legal expenses would be covered.

Glass Lewis – Glass Lewis will closely evaluate proposals to adopt such officer exculpation provisions on a case-by-case basis and will generally recommend against such proposals, unless the board provides a compelling rationale for the adoption, and the provisions are reasonable.

Board Oversight and Accountability for Environmental Issues

Environmental issues took center stage in the 2022 proxy season, with a record number of shareholder proposals focused on this topic. In line with this trend, the proxy advisory firms focused on board accountability for environmental and social ("E&S") issues, with a particular emphasis on climate change, and Glass Lewis adopted a new policy specifically addressing board oversight of climate-related issues.

Board Accountability for Climate:

ISS – ISS is retaining its general policy that, for companies that are significant greenhouse gas ("GHG") emitters through their operations or value chain,³it will generally vote against or withhold from the incumbent chair of the responsible committee (or other directors on a case-by-case basis) in cases where it determines that the company is not taking the minimum steps needed to "understand, assess, and mitigate risks related to climate change to the company and economy." However, for these companies, ISS has increased the standard for "minimum steps." Under ISS's 2023 policy, minimum steps includes disclosures and appropriate GHG emissions reductions targets,⁴ namely "medium-term GHG reduction targets or Net Zero-by-2050 GHG reduction targets for Scope 1 and Scope 2 emissions." These targets should cover the vast majority (95%) of the company's operational (Scopes 1 and 2) emissions.
Glass Lewis – Glass Lewis adopted a new policy on board accountability under which "companies whose own GHG emissions represent a financially material risk"⁵ should provide thorough climate-related disclosures (i) that cover climate-related risk, in line with the recommendations of the Task Force on Climate-related Financial Disclosures, and (ii) that describe explicit and clearly defined oversight responsibilities for climate-related issues. If Glass Lewis finds either of these disclosures to be absent or significantly lacking, it may recommend against the chair of the committee (or board) charged with oversight of climate-related issues, or if no committee has been charged with such oversight, the chair of the governance committee.⁶

Board Accountability for Climate:

Glass Lewis updated its prior policy and will now generally recommend against the governance committee chair at a Russell 1000 company that fails to provide explicit disclosure concerning the board's role in overseeing E&S issues (previously it only noted such failure "as a concern").⁷ Furthermore, Glass Lewis has expanded its tracking of board-level oversight of E&S issues from only Russell 1000 companies to all Russell 3000 companies. When evaluating a board's role in overseeing E&S issues, it will examine a company's proxy statement and governing documents (such as committee charters) to determine if directors maintain a meaningful level of oversight and accountability for a company's material E&S risks.

Board Oversight of Cybersecurity

There continues to be a strong regulatory focus on Board oversight of cyber-related issues,⁸ which can have potentially significant adverse outcomes for companies. Glass Lewis has now issued a policy expressing its view on that topic.

Glass Lewis has adopted a new policy which encourages all issuers to provide clear disclosure concerning the role of the board in overseeing issues related to cybersecurity, as well as how companies are ensuring directors are fully versed on this "rapidly evolving and dynamic issue." Glass Lewis will generally not make recommendations on the basis of a company's oversight or disclosure concerning cyber-related issues; however, it will closely evaluate a company's disclosure in this regard in instances where cyber-attacks have caused significant harm to shareholders and may recommend against appropriate directors if such disclosure or oversight is found to be insufficient
ISS does not have a policy on oversight of cybersecurity; however, in 2021 it added "Information Security Risk Oversight" and "Information Security Risk Management" as factors to its ESG Governance Quality Score.

Board Composition

Board composition, in terms of both gender and racial/ethnic/other diversity, remains an important topic to shareholders, institutional investors and proxy advisory firms. Both ISS and Glass Lewis updated their gender diversity policies to be more widespread and/or stringent, and Glass Lewis for the first time added an affirmative "underrepresented community" diversity policy.

Gender Diversity

ISS – ISS will generally recommend against the nominating committee chair (or other directors on a case-by-case basis) at companies with no women on the board. This policy, which previously applied only to Russell 3000 and S&P 1500 companies, has been expanded to apply to all companies in 2023, including foreign private issuers listed on U.S. exchanges (that would otherwise be subject to their regional policies). An exception will be made if there was a woman on the board at the previous annual general meeting and the board makes a firm commitment to return to gender diverse status within a year.⁹
Glass Lewis – Glass Lewis is transitioning from a fixed numerical approach to a percentage-based approach for board gender diversity, and, starting in 2023, will generally recommend against the chair of the nominating committee at Russell 3000 companies if a board is not at least 30% gender diverse. Outside the Russell 3000, its existing policy requiring a minimum of one gender diverse director will remain in place. When making voting recommendations, Glass Lewis will carefully review a company’s disclosure of its diversity considerations and may refrain from recommending against directors when boards have provided a sufficient rationale or a plan to address the lack of diversity on the board, including a timeline to appoint additional gender diverse directors (generally by the next annual meeting).

Other Diversity Categories

Glass Lewis on "underrepresented community" diversity – Glass Lewis adopted a new policy on underrepresented community diversity, under which it will generally recommend against the chair of the nominating committee at Russell 1000 companies if the board has fewer than one director from an underrepresented community.¹⁰ Glass Lewis may refrain from recommending against directors when boards have disclosed a sufficient rationale or a plan to address the lack of diversity on the board, including a timeline to appoint additional directors from an underrepresented community (generally by the next annual meeting).
ISS on Racial and/or Ethnic Diversity – ISS did not change its existing policy on racial and/or ethnic diversity for 2023. For companies in the Russell 3000 or S&P 1500 indices, ISS will generally vote against or withhold from the chair of the nominating committee (or other directors on a case-by-case basis) where the board has no apparent racially or ethnically diverse members. An exception will be made if there was racial and/or ethnic diversity on the board at the preceding annual meeting and the board makes a firm commitment to appoint at least one racial and/or ethnic diverse member within a year. ISS's policy does not cover LGBTQ+ diversity.

Disclosure of Director Diversity and Skills

Glass Lewis will now generally recommend against the chair of the nominating committee when companies in the Russell 1000 index¹¹ have not provided any disclosure of individual or aggregate racial/ethnic minority demographic information, as well as those that have not provided any disclosure in each of its tracked categories.¹²

State Laws on Diversity

Glass Lewis revised its discussion regarding state laws on diversity following recent changes to the status of certain state laws. Glass Lewis will recommend in accordance with mandatory board composition requirements set forth in applicable state laws when they come into effect. However, it will refrain from providing recommendations pursuant to these state board composition requirements until further notice while these laws are being appealed (such as in the case of mandatory board composition requirements set forth in California's SB 826 and AB 979, which are currently on appeal after being found by the trial court to violate California's constitution). However, it will continue to monitor compliance with these requirements.

Director Overboarding

Director commitments are an important voting consideration for proxy advisory firms and institutional investors. Glass Lewis has now clarified its policy on director commitments for 2023.

Glass Lewis revised its discussion of director commitments and clarified that it will generally recommend that shareholders vote against (i) a director who serves as an executive officer (other than executive chair) of any public company while serving on more than one external public company board, (ii) a director who serves as an executive chair of any public company while serving on more than two external public company boards, and (iii) any other director who serves on more than five public company boards. Under its previous policy, Glass Lewis did not specifically address executive chair status on other boards, and it would generally recommend against a director who served as an executive officer of any public company while serving on more than two public company boards and any other director who serves on more than five public company boards.

At this stage, companies will still need to focus on their institutional investors' policies on overboarding, as certain of these policies are more stringent than ISS and Glass Lewis. See Appendix B for a full list of such policies.

Appendix A

Compensation-Related Items

Long-Term Incentives

Glass Lewis revised its threshold for the minimum percentage of the long-term incentive grant that should be performance-based from 33% to 50%, in line with market trends. Beginning in 2023, Glass Lewis will raise concerns in its analysis with executive pay programs that provide less than half of an executive's long-term incentive awards that are subject to performance-based vesting conditions. It may refrain from a negative recommendation in the absence of other significant issues with the program's design or operation, but a negative trajectory in the allocation amount may lead to an unfavorable recommendation.

Problematic Pay Practices – Executive Severance

ISS codified its current approach to evaluating severance payments received by an executive when the termination is not clearly disclosed as involuntary, specifically adding this to the list of problematic practices that may lead to an adverse recommendation. The language of the policy was also updated to (i) conform with ISS's current approach to evaluating problematic pay practices, which is not confined to "non-performance-based pay elements," and (ii) clarify that the examples of problematic pay practices identified in the policy language are not an exhaustive list of practices that may result in adverse vote recommendations.

Value-Adjusted Burn Rate ("VABR")

The one-year transition to the new VABR methodology that was previously included in ISS's 2022 policy updates is expiring and the new VABR methodology will become effective in 2023. The new VABR methodology more accurately measures the value of recently granted equity awards and is based on calculations that are more readily understood and accepted by the market: the actual stock price for full-value awards; and the Black-Scholes value for stock options. More details can be found in the FAQs on the Policy Gateway.

Recoupment Provisions

Glass Lewis revised its discussion on clawback policies to reflect new regulatory developments for exchange-listed companies. During the period between the announcement of the final rules and the effective date of listing requirements, Glass Lewis will continue to raise concerns for companies that maintain clawback policies that only meet the requirements set forth by Section 304 of the Sarbanes-Oxley Act. However, disclosure from such companies of early efforts to meet the standards of the final rules may help to mitigate concerns.

Governance-Related Items

Unequal voting rights

ISS' current policy is to vote against directors of newly public companies that retained certain "problematic" governance provisions, including multi-class capital structures with unequal voting rights (in the absence of a reasonable sunset); however, ISS had grandfathered companies that already had these provisions. In 2021, responding to the results of its benchmark policy survey, ISS removed this carve out, giving affected companies a one-year grace period to comply. ISS will now generally recommend against or withhold from directors individually, committee members or the entire board (except new nominees, who will be considered on a case-by-case basis), if the company (regardless of its age) has a common stock structure with unequal voting rights.¹⁴ Exceptions may be made (i) for newly public companies that have a sunset provision of no more than seven years from the date of going public and (ii) in certain other cases.¹⁵

Unilateral bylaw or charter amendments

Generally, if a board amends the company's bylaws or charter without shareholder approval in a way that materially diminishes shareholders' rights or adversely impacts shareholders, ISS will consider a number of factors in making its vote recommendation for directors. If certain enumerated provisions¹⁶ are not reversed or submitted to a binding shareholder vote, ISS will generally recommend against directors (except new nominees, who are considered on a case-by-case basis). The policy update adds to that list: (i) unilateral adoption of a fee-shifting provision¹⁷ and (ii) another provision deemed egregious.

Problematic governance structures at newly public companies

For newly public companies with supermajority vote requirements to amend the bylaws or charter, classified board structure or other egregious governance provisions, ISS views the inclusion of a reasonable sunset provision as a mitigating factor when determining its voting recommendation. ISS updated its policy to state that a "reasonable sunset period" to fully eliminate the provision is defined as no more than seven years from the date of going public. The policy was also updated to explicitly state that a "newly public company" is a company that held its first annual meeting of shareholders after February 1, 2015.

Amendments to quorum requirements

Generally, ISS has recommended against proposals to reduce quorum requirements. ISS will now make recommendations on a case-by-case basis, taking into consideration a number of factors, such as the new quorum threshold requested, the company's market capitalization and ownership structure, previous voter turnout or attempts to achieve quorum and the rationale for the reduction. This change is responsive to the fact that, over the past two years, more small companies, especially those with large retail ownership, "have had to adjourn their meetings, often repeatedly, due to the lack of a quorum. Eventually, many of them have unilaterally reduced the quorum requirements to less than 50% and were then able to hold the meeting." ISS also notes the minimum requirements under the rules of the Nasdaq Stock Market and the New York Stock Exchange that a quorum be at least one-third of issued shares.

Poison pills

ISS generally recommends votes on a case-by-case basis on board nominees in connection with the adoption of short-term poison pills (with a term of one year or less) without a shareholder vote, taking into account a number of factors.¹⁸ The update clarifies that one additional factor that will be taken into consideration is the ownership level at which the short-term pill is triggered.¹⁹

Share Issuance Management Proposals

For US domestic issuers incorporated outside the US and listed solely on a US exchange, ISS is introducing a new policy "to generally vote for resolutions to authorize the issuance of common shares up to 20 percent of currently issued common share capital, where not tied to a specific transaction or financing proposal." The creation of a specific policy on this topic for US-listed but non-US incorporated companies is intended to “better reflect the expectations and concerns of investors in the US market.” The policy will apply to companies with a sole listing in the U.S., but which are required by the laws of the country of incorporation to seek approval for such share issuances. Dual-listed companies that are required to comply with listing rules in the country of incorporation will continue to be evaluated under the policy for that market.

Clarifying Amendments

The proxy advisory firms also provided clarifications of certain of their existing policies. See respective policy updates for more information on the following:

ISS:

Problematic pay practices, specifically severance payments received by an executive when the termination is not clearly disclosed as involuntary
E&S Shareholder Proposals

Glass Lewis:

Board responsiveness when shareholders vote contrary to management
Company responsiveness to low say-on-pay support levels
Recommendations regarding the chair of the compensation committee when certain outsized awards ("mega-grants") have been granted
Reasonable disclosure regarding one-time awards
Reviews of grants of front-loaded awards
Pay for performance methodology
Compensation committee discretion on short- and long-term incentive payouts

Appendix B

Director Overboarding Policies

ISS: Generally recommend against/withhold from directors who (i) sit on more than five boards; or (ii) are CEOs of public companies who sit on the boards of more than two other companies (total of three, withhold only at their outside boards).²⁰
Glass Lewis: Generally recommend against (i) a director who serves as an executive officer (other than executive chair) of any public company while serving on more than one external public company board, (ii) a director who serves as an executive chair of any public company while serving on more than two external public company boards, and (iii) any other director who serves on more than five public company boards.²¹
BlackRock: Public company executives can sit on one outside board (total of two); other directors can sit on three outside boards (total of four).
Vanguard: A named executive officer ("NEO") can sit on two boards (either one outside board or two outside boards if does not serve on its "home" board); other directors can sit on four boards.²² It will also look for portfolio companies to "adopt good governance practices regarding director commitments, including the adoption of an overboarding policy and disclosure of how the board oversees policy implementation."
State Street: An NEO can sit on two boards; board chairs or lead independent directors can sit on three boards; other directors can sit on four boards. For non-NEO directors who are overboarded, may consider waiving the policy to vote "against" such director if the company publicly discloses its overboarding policy (in its corporate governance guidelines, proxy statement, or on the company website) and the policy includes: (i) a numerical limit on public company board seats a director can serve on (which cannot exceed State Street's policy by more than one seat); (ii) consideration of public company board leadership positions (e.g., Committee Chair); (iii) affirmation that all directors are currently compliant with the company policy; and (iv) a description of an annual policy review process undertaken by the Nominating Committee to evaluate outside director time commitments.
Fidelity: A CEO can sit on two outside unaffiliated boards (three total).
CalPERS: An executive officer can sit on one outside board (two total); other directors can sit on four boards.
NYC Comptroller: A CEO can sit on two outside boards (three total, vote against only at outside boards); other directors can sit on four boards.
NYSE: If an audit committee member serves on more than three public company audit committees (including the Company's), Company must disclose this on its website or in proxy statement.

_{1 ISS's 2023 policy updates can be found here. Glass Lewis' 2023 voting guidelines can be found here. ISS will be hosting an informational webcast on the 2023 policy updates as well as other developments in the governance landscape, on January 19, 2023 at 11:00 a.m. EST.

2 ISS also considers, among other factors, the extent to which the proposal would: "(i) eliminate directors' and officers' liability for monetary damages for violating the duty of care, (ii) eliminate directors' and officers' liability for monetary damages for violating the duty of loyalty, (iii) expand coverage beyond just legal expenses to liability for acts that are more serious violations of fiduciary obligation than mere carelessness, and (iv) expand the scope of indemnification to provide for mandatory indemnification of company officials in connection with acts that previously the company was permitted to provide indemnification for, at the discretion of the company's board (i.e., 'permissive indemnification'), but that previously the company was not required to indemnify."

3 For 2023, the universe of high emitting companies will continue to be identified as those in the Climate Action 100+ Focus Group.

4 Minimum steps also includes detailed disclosure of climate-related risks, such as according to the framework established by the Task Force on Climate-related Financial Disclosures, including: (i) board governance measures; (ii) corporate strategy; (iii) risk management analyses; and (iv) metrics and targets.

5 Glass Lewis does not define this universe of companies, but does reference that it includes those companies identified by groups such as Climate Action 100+.

6 Glass Lewis notes that it may extend its recommendation on this basis to additional members of the responsible committee in cases where the committee chair is not standing for election due to a classified board, or based on other factors, including the company's size and industry and its overall governance profile.

7 Glass Lewis still emphasizes that companies should determine the best structure for this oversight, whether conducted by specific directors, the entire board, a separate committee, or combined with the responsibilities of a key committee.

8 For more information, see our prior alert, "SEC Proposes Mandatory Cybersecurity Disclosure Rules."

9 In addition, the diversity policy for foreign private issuers ("FPIs") previously applicable only to FPIs in the Russell 3000 and S&P 1500 will also be expanded to all FPIs in 2023.

10 "Underrepresented community" is defined as Black, African American, North African, Middle Eastern, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaskan Native, or who self-identifies as gay, lesbian, bisexual, or transgender. This will be based solely on self-identified demographic information disclosed in company proxy statements.

11 Its prior policy only applied to S&P 500 companies.

12 Tracked categories are the following: (i) the board's current percentage of racial/ethnic diversity; (ii) whether the board's definition of diversity explicitly includes gender and/or race/ethnicity; and (iii) whether the board has adopted a policy requiring women and minorities to be included in the initial pool of candidates when selecting new director nominees (aka "Rooney Rule").

13 In its evaluation, ISS will also consider: (i) the scope and prescriptive nature of the proposal; (ii) the company's current level of disclosure regarding its environmental and social performance and governance; and (iii) whether the company has significant controversies or regulatory violations regarding social or environmental issues. The updated policy eliminates two prior criteria: (i) whether the company has management systems and oversight mechanisms in place regarding its social and environmental performance; and (ii) the degree to which industry peers have incorporated similar non-financial performance criteria in their executive compensation practices.

14 This include including classes of common stock that have additional votes per share, classes of shares that are not entitled to vote on all the same ballot items or nominees, or stock with time-phased voting rights.

15 These are: (i) limited partnerships and REITs, (ii) circumstances where the super-voting shares are less than 5% total voting power or (iii) where the "company provides sufficient protections for minority shareholders, such as allowing minority shareholders a regular binding vote on whether the capital structure should be maintained."

16 These are (i) having a classified the board; (ii) adopting supermajority vote requirements to amend the bylaws or charter, or (iii) eliminating shareholders' ability to amend the bylaws.

17 Fee-shifting provisions require a shareholder who sues a company unsuccessfully to pay all litigation expenses of the defendant corporation and its directors and officers.

18 These factors are: (i) the disclosed rationale for the adoption; (ii) the company's market capitalization (including absolute level and sudden changes); (iii) a commitment to put any renewal to a shareholder vote; and (iv) other factors as relevant.

19 In its discussion of the rationale for the change, ISS notes that "[d]uring the initial phase of the COVID-19 pandemic in 2020, with the severe market turbulence, many companies adopted short-term poison pills. Many of these featured very low triggers—10 percent or even 5 percent—implying that the objective of a poison pill has morphed over time from defense against a hostile takeover, to defense against an activist campaign that may or may not contemplate a change in control. Shareholders have a clear interest in preventing an opportunistic takeover at a price that does not reflect the company's long-term fair value, due to factors such as short-term market disruptions. However, this must be balanced against the potential for an inordinately low trigger to entrench an underperforming board and management team by insulating them shareholders who may be seeking operational or strategic changes that could enhance value, or governance changes that could benefit all shareholders."

20 ISS will also generally vote against the bundled election of directors if one or more nominees, if elected, would be overboarded.

21 Glass Lewis may consider relevant factors such as (i) the size and location of the other companies where the director serves on the board, (ii) the director's board roles at the companies in question, (iii) whether the director serves on the board of any large privately-held companies, (iv) the director's tenure on the boards in question, and (v) the director's attendance record at all companies. For directors who serve in executive roles other than CEO (e.g., executive chair), it will evaluate the specific duties and responsibilities of that role in determining whether an exception is warranted. Glass Lewis may also refrain from recommending against certain directors if the company provides sufficient rationale for their continued board service. The rationale should allow shareholders to evaluate the scope of the directors' other commitments, as well as their contributions to the board including specialized knowledge of the company's industry, strategy or key markets, the diversity of skills, perspective and background they provide, and other relevant factors.

22 In certain instances, Vanguard will consider voting for a director who would otherwise be considered overboarded because of company-specific facts and circumstances that indicate the director will have sufficient capacity to fulfill his/her responsibilities or if the director has publicly committed to stepping down from the other directorship(s) as necessary to fall within the listed thresholds.}

_{White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.}

_{This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.}