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December 2006

Panel to Examine California Pension/Healthcare Obligations

California Governor Arnold Schwarzenegger signed an executive order creating a bipartisan commission to advise him on changes needed to address public pension obligations, particularly rising health care costs. Their recommendations are due in 2008.

Labor groups and their Democratic allies in the Legislature immediately cautioned Schwarzenegger to not overreach as he did in 2005, when he considered pushing for a ballot measure to privatize pensions for new employees. He backed off when public safety unions aired commercials arguing his plan would take money from the widows of firefighters and police.

Finance Director Mike Genest estimated that CalPERS and CalSTRS would need to invest an additional $49 billion right now to cover all of the state's public employees through retirement. That amount is on top of an estimated $40 billion to $70 billion additional needed to pay health care costs for state workers and University of California employees through their retirements.

The state must assess its unfunded pension and health care liabilities by 2009 under new accounting rules set forth by the independent Governmental Accounting Standards Board. The new commission's 2008 report will identifying all of the state's unfunded liabilities and recommend how to pay for them.

Lawmakers have so far decided to ignore the advice of their chief budget expert, nonpartisan Legislative Analyst Elizabeth G. Hill, who has urged them to set aside as much as $6 billion per year to cover the cost of unanticipated retiree healthcare expenses.

Failure to narrow the deficit considerably before the conclusion of the current legislative session in 2008 could create problems for the state on Wall Street. Rating agencies are monitoring the issue closely, and have made clear that they expect the state to devise a concrete plan, reports the LATimes. (Governor creates panel to tackle pension costs, Sacramento Bee, 12/29/06; Governor tackles pension costs, San Jose Mercury News, 12/29/06;Gov. creates panel to study pension costs, LATimes, 12/29/06)

The Governor also released an op ed article in which he wrote, "Last year, in my haste to reform our state's pension system, I made a mistake. I backed a proposed initiative that was poorly drafted, allowing critics to argue that the families of police or firefighters injured or killed in the line of duty could be denied death and disability benefits if the measure passed."

He pledges not to make the same mistake again. "I am confident that once we know exactly what we are facing and our best options for addressing it, we can find a common-sense approach that protects California, preserves promised retirement benefits and ensures the Golden State's economic vitality." (This time, let's get state pension reform done right, Sacramento Bee, 12/29/06)

Maybe this time the focus will be on saving taxpayer money instead of on emasculating the power of CalPERS and CalSTRS to shape corporate governance.

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2006 in Review

Broc Romanek's brief article, And What a Year It Was!, in TheCorporateCounsel.net Blog captures the essence of what "was arguably the most dramatic year of change in recent history" for corporate governance. He left out the fact that Enron executives were finally sent to jail for their role in the corporate scandal that rocked the US and brought about sweeping regulatory reforms meant to protect investors and raise the bar. Also of note were all the options backdating investigations still under way. Momentum continues to build.

SEC Amends Executive Compensation Rules

Last July the Council of Institutional Investors applauded the SEC for approving executive compensation disclosure rules, which "shine a bright light on what has been a dark corner of Corporate America." "The new rules will help shareowners hold boards accountable for pay that is out of whack with performance." (Council of Institutional Investors lauds SEC’s new pay disclosure rules, 7/26/06)

In a surprise move, the SEC's new amendments more closely align the SEC's disclosure requirements with the accounting dictates of FAS 123(R). The value of stock options and stock grants granted in any one year will now be disclosed on a year-by-year basis rather than as a multi-year lump sum.

Ann Yerger, executive dircctor of the Council of Institutional Investors in Washington, D.C., said "the SEC has given companies the ability to under-represent the value of options grants." "In general we were extremely supportive of these changes. Unfortunately the latest change is a big step back for the SEC and the inevesting public," said Yerger, whose organization represents 130 corporate, government and union pension funds. (SEC change on executive pay gets mixed reviews, 12/27/06)

As Floyd Norris explained in the NYTimes (Does S.E.C. Know What It Is Doing?, 12/29/06),

"it is not clear whether the commissioners even understood the ramifications of what they agreed to in a decision that was released late last Friday. But the result is that identical pay packages given to two executives will be reported very differently, depending on the details of a company's retirement plan. That would not have happened under the July rules.

Say the chief executive of American Widget gets a $24 million option grant on Dec. 1 of this year, with the options vesting -- meaning they may be exercised -- over four years. He is not eligible for retirement, perhaps because he joined the company only a few years ago, or perhaps because he has not reached the company's minimum retirement age of 60.

In the summary table, the value of that option will be shown as $500,000. That is because he has worked just one month of the 48 months needed for the option to become fully exercisable.

Over at National Widget, American's main competitor, the chief executive gets an inferior options package on the same day. It is worth $5 million, with the same four-year schedule. But that executive is eligible to retire, although he has no intention of doing so. The compensation summary will show he got a $5 million option.

The reality is that one man received options worth nearly five times what the other one was awarded. The appearance is very different."

As Long as CEOs Decide

As reported on Marketplace, the average CEO is paid 369 times as much as the average worker, up 16%, on top of a 30% jump last year. Nell Minow, one of those presenting at the upcoming Directors Forum 2007, calls that "feeding at the executive trough."

Minow says there's something wrong with Barry Diller's pay package, making over $441 million in profit from selling previously granted stock options in the last two years alone and still $167 million worth of stock options he hasn't cashed yet. Then there's the severance package of fired CEO Carly Fiorina and Mark Hurd's "guaranteed bonus," since his contract provides that all of his first-year goals are "deemed to have been achieved."

Nice work if you can get it, concludes Minow, and you can "as long as CEOs get to decide who serves on their boards." (Feeding at the executive trough, 12/26/06) They soon won't unless the SEC in effect overturns AFSCME v. AIG next month.

Improving Corporate Ethics Indicators

Sir Andrew Likierman, a professor of management practice at the London Business School, where he is working on ways to improve performance measurement outlines how to build a responsibility gauge (Measuring corporate responsibility: Acting ethically – and being able to prove it, Ethical Corporation, 12/14/06):

1. Clarify the measurement framework. Definition of objectives should also include an explicit statement about the connection between corporate social responsibility and financial performance. Clarification of the assumed costs and benefits is also essential. Finally, there should also be a statement about the risks involved in pursuing the corporate social responsibility agenda, which should be a subset of the company’s main risk analysis.
2. Find better measures. Any proxies chosen need to be appropriate. Turning the focus from activity to outcomes is also part of devising better measures. Where possible, measures involving comparisons need to be with a peer group or an externally recognised standard, not with purely internal measures, or based on an arbitrarily set target.
3. Ensure that measurement is credible. Credibility is enhanced by a choice of measures that are clear, not seen as biased, reported consistently and with a run of figures. There should be transparency in setting out the basis by which the scope, objectives, measures, targets and timescales have been decided. Inclusion in one or more of the well-known indices (such as Dow Jones Sustainability Index, FTSE4Good or BITC Corporate Responsibility Index) will also add credibility.
4. Recognise limitations of the measures alone. The commentary also needs to acknowledge the fact that some costs and most benefits will not be measurable in numerical terms. The commentary also needs to reflect the relative importance of different corporate social responsibility measures. There is a tendency to treat all measures as having equal weight, when some will clearly be more significant than others.

Potential Conflicts Loom at Glass Lewis

Glass Lewis is being acquired by Xinhua Finance. Shanghai-based Xinhua purchased an initial 19.9% of San Francisco-based Glass Lewis in August 2006. Purchase of the remaining 80.1% is expected to close in early 2007. "XF is not well known, but critics are already questioning whether a company assumed to have close ties to Beijing should influence sensitive corporate voting outcomes around the world," stated the December 15, 2006 edition of Global ProxyWatch from Davis Global Advisors. The newsletter also noted that GL may no longer be perceived as free from conflicts of interest: "Parent XF owns investor relations firm Taylor Rafferty, whose clients are mostly corporates." (Proxy advisory firm Glass Lewis is being acquired by Xinhua Finance, SocialFunds.com,12/19/06: subscribe to their weekly news alerts) Press release.

Current policy at Glass Lewis is posted as follows: Glass Lewis will not enter into business relationships that possibly conflict with our mission: serving institutional participants in the capital markets with completely objective advice and services. Accordingly, Glass Lewis does not offer consulting or banking services to public corporations or directors. We are not in the business of advising public companies on their structures or conduct, and we refuse to use our position as trusted advisor to institutional investors to win consulting mandates with issuers.

Public Employee Health Over $1 Trillion

Donald Rueckert Jr., senior vice president and an actuary with Aon Consulting, estimates local governments’ total retiree health bill will probably turn out to be about $1.1 trillion under new accounting rules.

A New York Times article outlines the options as: "tax increases, union givebacks, sales of bonds or public assets, mass-transit fare increases, or increases in the cost of other local services." New York, estimates future cost of its retirees’ health care is $53.5 billion in today’s dollars.

Mayor Michael Bloomberg says the city will set up a new trust fund, separate from the pension fund, and prime it with $2.2 billion from the city’s current surplus...a start. (Paying Health Care From Pensions Proves Costly, 12/19/06) All this could lead to a greater push for universal health care.

Report From John Chevedden & Associates

Eastman Chemical Company (EMN) eliminated poison pill after Ray T. Chevedden submitted a proposal on this topic on Nov. 5, 2006. All of the rights outstanding under the company’s stockholder rights plan are eliminated, effective as of Dec. 18, 2006.

“We remain focused on enhancing long-term value for stockholders through the continued implementation of our recently announced long-term strategy,” said Brian Ferguson, Eastman chairman and CEO. "Our decision to terminate the stockholder rights plan reflects the board’s ongoing commitment to sound corporate governance.”

According to the company's press release, "in evaluating the rights plan, the board considered a wide variety of factors bearing on the company and its stockholders including, among other factors, the company's current stockholder base, stockholder views about rights plans and the company's other available protections against abusive takeover practices. The board has reserved the right in its sole discretion to take any actions in the future that it determines in the exercise of its fiduciary duties to be necessary or advisable, which could include the adoption of a new stockholder rights plan."

Charles Miller submitted a majority vote standard proposal to BMY on November 14, 2006, potentially playing a role in the adoption announced on December 5, 2006, when the Board of Directors of Bristol-Myers Squibb Company amended the Company's Bylaws to provide for directors to be elected by a majority vote. Bylaw number 15 was amended to change the vote standard for the election of directors from a plurality of votes cast to a majority of votes cast in uncontested elections. The Bylaws were also amended to provide that if a director nominee who currently serves as a director is not elected by a majority vote in an uncontested election, the director shall offer to tender his or her resignation to the Board of Directors. The Committee on Directors and Corporate Governance will make a recommendation to the Board on whether to accept or reject the resignation, or whether other action should be taken. The independent members of the Board will act on the Committee's recommendation at its next regularly scheduled Board meeting which will be held within 60 days from the date of the certification of the election results.

William Steiner and Charles Miller submitted respective proposals on the poison pill and on eliminating supermajority vote requirements to Schering-Plough Corporation on November 17, 2006 potentially playing a role in triggering termination of the poison pill and a major reduction in “supermajority” voting requirements per SGP news release. Mr. Miller's 2006 eliminate supermajority vote proposal to SGP won 62% support. Mr. Miller's 2005 declassification proposal to SGP won 75% support and now SGP will accelerate its declassification of the board. According to the company's press release, "these actions replace long-standing practice that have been in place for many years and existed well before the arrival of the company’s new management team in the spring of 2003."

Marathon Oil (MRO) will ask shareholders to approve elimination of supermajority voting requirements at its 2007 annual meeting per a Dec. 5, 2006 no action challenge to Nick Rossi's 2007 proposal on this same topic.  Mr. Rossi's 2006 proposal on this topic won an 83%-vote at MRO.

IBM eliminated its supermajority voting requirement after the 2006 proposal on this topic by Emil Rossi won a 61% vote and Mr. Rossi submitted a similar proposal for 2007. According to the company's press release, the four proposals, the Board will recommend to IBM stockholders in the Company's 2007 proxy statement that stockholders vote to approve four (4) separate management proposals lowering existing statutory supermajority voting provisions. The Company's 2007 Definitive Proxy Statement will be filed with the SEC in early March 2007.

OpenCourseWare

MIT's OpenCourseWare offers a free and open educational resource (OER) for educators, students, and self-learners around the world. Once at the site, simply search for your topic by phrase or word, such as "corporate governance" or "shareholder." A group of partners are working with MIT OpenCourseWare to achieve its publishing goals, and have made in-kind donations of time and resources to help publish 1400 courses.

Greenberg vs SEC

The SEC uses the Securities Industry Conference on Arbitration (SICA) as a sounding board to obtain advice and recommendations on the securities arbitration procedure.  A Complaint for Declaratory and Injunctive Relief (Complaint) by Les Greenberg with the United States Securities and Exchange Commission (USDC Case No. CV 06-7878-GHK(CTx) alleges that the SICA is dominated by the securities industry and operates in violation of the Federal Advisory Committee Act.  This relationship keeps the public investor mandatory arbitration process tilted in favor of the securities industry.

Greenberg's Petition for Rulemaking (SEC File No. 4-502), which is the underlying catalyst for the lawsuit, proposes to:

1. Permit arbitration panel members, should they elect to do so, to conduct legal research, or, in the alternative, forbid Self-Regulatory Organizations (SROs), e.g., NASD, sponsored arbitration forums from restricting arbitrators from conducting legal research;
2. Abolish the requirement that a securities industry arbitrator be assigned to each three person panel hearing customer disputes or, in the alternative, require that information presented to a panel of arbitrators by a securities industry arbitrator be revealed to the parties during open hearing;
3. Require SROs to conduct continuing evaluations of ability of every arbitrator on their panels to perform his/her duties, including, but not limited to mandatory peer evaluations;
4. Require SROs to train arbitrators in applicable law; and,
5. Require SROs to reveal in pre-dispute arbitration agreements whether their arbitrators are required to follow the law in their decision-making process, the training of their arbitrators in the law, and their process, if any, to evaluate their arbitrators on a continuing basis.

2007 Proxy Season

Majority vote and executive compensation proposals will be the most frequently filed shareholder proposals for the 2007 proxy season, based on early indications. ISS' Governance Research Service is currently tracking over 400 governance-related resolutions already filed for the 2007 annual meeting season, including 107 majority vote proposals and 135 proposals related to executive compensation practices. (Early Snapshot on Shareholder Proposals for the 2007 Proxy Season, ISS Governance Blog, 12/15/06)

CalSTRS Takes New Leadership Role

CalSTRS became the first major US public pension fund to join the Enhanced Analytics Initiative. EAI is an international group of pension funds and managers aimed at encouraging investment research that considers the effect on corporate performance of long-term factors not used in traditional fundamental analysis, such as climate change, corporate governance, employment standards and executive pay. Members typically allocate at least 5% of commissions to brokerage firms that do research in these areas. (CalSTRS joins research group, Pensions&Investments, 12/12/06)

Scandals Continued In 2006

Keith Regan of E-Commerce Times concludes that "Investors, customers and the general public seem to have grown somewhat immune to corporate scandals of varying degrees, even tolerating apparent criminal behavior from vendors as long as it doesn't interrupt their own businesses. Whether this year's batch of scandals engender new laws or regulations remains to be seen."

James Hoopes, the Murata Professor of Business Ethics at Babson College, says "the arrogance, self-righteousness and unexamined values that underlay Enron and the 2001-2002 wave of corporate scandals continues largely unabated and at unacceptably high levels. Public cynicism will continue at high and justifiable levels until business leaders begin to know themselves."

Regan concludes, "as both options scandals and the HP debacle demonstrate, boards still are not as independent of the daily operation of a business as the law wants them to be." (2006 in Review, Part 3: Corporate Governance Returns - With a Vengeance, E-Commerce Times, 12/14/06) Of course, the simple solution is proxy access, giving investors the power to finally elect their own representatives to the board.

SEC Action

The SEC approved optional electronic delivery of proxy statements and annual reports by 2008 proxy season. Investors can opt for paper. The issued guidance to firms making the internal-controls provision (Section 404) in Sarbanes-Oxley less onerous. Raised minimum threshold for individual investors in hedge funds to $2.5 million in investment assets, from $1 million of net worth. Will revisit its mutual-fund governance rule. Proposed easier way for foreign companies to withdraw from U.S. reporting rules. (see S.E.C. Eases Regulations on Business, NYTimes, 12/14/06) The agency said it plans to make the e-proxy model mandatory by January 2008, though some members expressed concern about doing that. TheCorporateCounsel.net Blog provides excellent coverage at The SEC's Big Day, 12/14/06. While at TheCorporateCounsel.net Blog see Our "What is a Perk" Survey Results. How about Larry Ellison's $1.8 million for home security?

Morgan Stanley's Smart Move

Morgan Stanley has hired Kenneth A. Bertsch from Moody's to oversee the way it votes the shares it holds. As the WSJ reports, the hiring comes "as Morgan Stanley's $448 billion investment arm has been flexing its shareholder muscle at New York Times Co. As 7.6% owner of the Times's common shares, a London money manager with Morgan Stanley Investment Management has been pushing the newspaper to eliminate its dual share structure and to separate the chairman and publisher positions."

As director of corporate governance at money-management firm TIAA-CREF from 1999 to 2002, Bertsch supported a move to have companies record stock options as an expense and requiring an investor vote on new stock issuance.

At Moody's, he conducted research showing ties between executive compensation and credit risk and also the link between bonus and option awards to be "predictive of both default and large rating downgrades.

Reportedly, Morgan Stanley has been among those most likely to support management proposals on compensation and least likely to support shareholder proposals to limit pay. (Morgan Stanley Buffs Activist Profile, 12/13/06) It seems reasonable to assume Morgan Stanley wouldn't have hired Bertsch unless they had already decided to take a more active role in proxy voting on behalf of client investors.

Harvard Downloads Available

The Program on Corporate Governance is pleased to announce two new discussion papers -- a study of option backdating and corporate governance and a study comparing executive pay in Japan and the US.

Lucky CEOs by Lucian Bebchuk, Yaniv Grinstein, and Urs Peyer studies the relation between corporate governance and opportunistic option grant manipulation, focusing on how grant date prices rank within the price distribution of the grant month. Investigating the incidence of "lucky grants" -- defined as grants given at the lowest price of the month – they estimate that about 1150 lucky grants resulted from manipulation and that 12% of firms provided one or more lucky grant due to manipulation during the period 1996-2005.

Executive Compensation in Japan: Estimating Levels and Determinants from Tax Records by Minoru Nakazato, J. Mark Ramseyer, and Eric B. Rasmusen compiles data on total executive incomes from income tax data and financial records to obtain some indication of which executives have substantial investment income. They find that Japanese executives earn far less than U.S. executives - holding firm size constant, about one-third the pay of their U.S. peers. Using tobit regression analysis, they further confirm that executive pay in Japan depends on firm size, with an elasticity of .24, but not on accounting profitability or stock returns. Corporate governance variables such as board composition have little or no effect on executive compensation, except that firms with large lead shareholders do appear to pay less.

CSR Position Opening

Director of Corporate Social Responsibility (CSR) operates a program of corporate ownership responsibilities, assets under management, that represent the social concern of the members of the Pension Boards and participants of the United Church Foundation. The Director, CSR is responsible for a wide range of activities conducted with the Corporate Social Responsibility Ministry. Major Responsibilities:

• Review and report on resolutions proposed for corporate vote.
• In coordination with the Corporate Social Responsibility Committee of each organization, implement the voting of shares at corporate meetings.
• Represent the Pension Boards and United Church Foundation within external professional organizations.
• Monitor adherence to social screening policy through utilization for PortolioScreener database
• Prepare communications materials regarding departmental activities.
• Enhance public image of department's activities through visits to seminaries, denominational conferences and congregations.
• Prepare and administer departmental budget.

The ideal candidate should have:

• Masters Degree or commensurate experience.
• Significant understanding of the ownership structures, types of financial operations and decision-making processes of corporations.
• Ability to analyze emerging issues.
• Understanding of employee benefits and experience in employee benefit communications a plus.

Contact Information: Candidates and sources, please communicate with Bob Sellery or Katie Wilson, Robert Sellery Associates, Ltd., 1050 Connecticut Avenue, N.W., 10th Floor, Washington, D.C. 20036. Tel: 202.331.0090; Fax: 202.772.3101. All inquiries will be kept in strict confidence.

Global Warming

ExxonMobil is still funding European organizations that seek to cast doubt on the scientific consensus on global warming and undermine support for legislation to curb emission of greenhouse gases. Some estimates suggest $19m (£9.7m) since 1998. (Exxon spends millions to cast doubt on warming, 12/07/06, The Independent)

Meanwhile, groups owning 1.7 million shares of TXU stock, led by five New York City and state pension funds, filed two resolutions to be put before TXU Corp. shareholders that would challenge the company's plans to build 11 coal-fired generating plants. One resolution asks "how TXU is responding to rising regulatory pressure to significantly reduce carbon dioxide emissions from power plants." The second resolution asks for an accounting on "how enhanced energy efficiency programs in Texas could impact the company's ability to sell the 9,000 megawatts of extra power that the new plants would generate." The resolutions were put together by Ceres. (Groups plan TXU dissent, 12/8/06, Star-Telegram)

James E. Rogers, chief executive of Duke Energy, a coal-burning utility in the Midwest and the Southeast, has emerged as an unexpected advocate of federal regulation that would for the first time impose a cost for emitting carbon dioxide. (The Cost of an Overheated Planet, 12/12/06, NYTimes)

And from Gristmill is "How to Talk to a Climate Skeptic," a series by Coby Beck containing responses to the most common skeptical arguments on global warming.

Chicago Group Calls for End to DB Plan

A Chicago business group of elite business leaders has sounded major alarm bells about the state’s ability to fund retirement and health coverage costs for state workers, claiming that taxpayers will have to pay more than $100 billion in unfunded pension liabilities and nearly $50 billion in unfunded health coverage expenses. According to the group, the shortfall stems from long-term inattention to the costs of the state's pension and health benefits, which are uncommonly generous compared with those in private industry.

The Civic Committee of the Commercial Club used the occasion to call on lawmakers to reform the state's public worker retirement funding system and to raise taxes by $5 billion a year to help pay the bills, according to a report from Crain's Chicago Business. Where the report breaks new ground is in estimating the potential liability of paying promised health benefits to more than 100,000 retired state workers, downstate teachers and future retirees. Those costs now are funded out of the regular annual state budget, but the report warns that costs are exploding and concludes that the total unfunded liability to taxpayers is about $48 billion.  (Surviving Illinois' debt sentence, 12/7/06; It's time to ask why state is $106 billion in red; 12/11/06, Chicago Sun-Times and Chicago Group Sounds Pension, Health Funding Alarm, 12/7/06, PlanSponsor.com) Expect more attacks on public pension plans nationwide as accounting rules kick in requiring disclosure of healthcare obligations.

Proxy Access

In preparation for the upcoming SEC meeting of December 13th, we recently suggested reviewing the excellent program put on by thecorporatecounsel.net last month, Shareholder Access and By-Law Amendments: What to Expect Now. However, the SEC's meeting notice for December 13th does not include proxy access. That's the second postponement since the courts decision. Originally, the topic was scheduled for mid-October, then December 13, now January. Grant & Eisenhofer, the firm that represented AFSCME, issued a press release that included the following:

We would like to thank and congratulate all of our clients and friends for the efforts that many of you have made to lobby both Congress and the SEC to avoid promulgating new rules that would have the effect of reversing the landmark decision on proxy access in AFSCME v. AIG, and would have a devastating effect on shareholders' rights.  The fight is not over, however.  Just last week Commissioner Campos was quoted in the press as saying that the Commission was still "struggling" with the issue of proxy access, and Commissioner Nazareth noted her belief that it is important for the SEC to reach a long term solution on shareholders' access to corporate proxy statements.  Indeed, corporations are still attempting to undermine shareholders' rights on the proxy access issue.  For example, Hewlett Packard Company recently sought permission from the SEC's Division of Corporation Finance to exclude a proxy access proposal from that corporation's 2007 proxy statement, arguing that the Second Circuit's decision in AFSCME v. AIG was wrong.

We urge you to keep communicating with the SEC and your federal legislators to protect the important right of shareholders to adopt bylaws to install proxy access rules at the companies they own, which was recognized by the Second Circuit in AFSCME v. AIG.  And we congratulate you on your efforts to date.  Obviously, your efforts have been working.

SEC Chairman Christopher Cox issued the following statement: “The agenda for the Dec. 13 meeting is already overloaded with several major items, including new Sarbanes-Oxley Section 404 guidance, foreign issuer deregistration, Gramm-Leach-Bliley Act rules, Internet proxy delivery and hedge fund rules, each of which requires detailed public staff explanation and commission discussion. As it is, this is slated to be one of the longest commission open meetings in quite a while." “The SEC response to the 2nd Circuit (appeals court) decision on Rule 14a-8 is entitled to thorough consideration and public discussion on its own merits, and for that reason is now scheduled for consideration at the next open meeting in January.” (SEC pulls shareholder nomination item from agenda, Pensions & Investments, 12/7/06) (see also Sec Tables Consideration Of Proxy Access, 12/08/06, The Harvard Law School Corporate Governance Blog)

And this from Broc Romanek's TheCorporateCounsel.net Blog: "Until it proposes new rules, the SEC has said that the 2nd Circuit court's AFSCME decision will stand, giving shareholders more power to nominate directors. The SEC is being aggressively lobbied by both sides in the debate. In fact, the Business Roundtable threatened yesterday to sue the SEC if it acted, following the US Chamber of Commerce's lead who last month warned the SEC that it may not have the authority to act. I wish I had a bookie that handled bets for this sort of thing, because it was easy money that the SEC would postpone this proposal given the magnitude and controversial nature of what it is considering...." (Third Time's a Charm?, 12/7/06)

"Cox is clearly looking to get a consensus or at least a 4-1 vote on proxy access, and he hasn't got it now," ISS Executive Vice President Patrick McGurn noted. "This means that the shareholder proposal at H-P and maybe a dozen other companies that are likely to get such resolutions have a better chance of making it into the proxy." Hewlett-Packard asked the SEC for permission to exclude the access proposal filed by AFSCME and state pension funds from Connecticut, New York, and North Carolina, arguing the AIG decision of the New York-based Second Circuit is not binding on agency staff and Hewlett-Packard, because HP is based in California, outside the court's jurisdiction. Richard Ferlauto, director of pension and benefit policy at AFSCME, said the latest SEC delay means agency staff "most likely" will not issue a "no action" letter. "If the company still attempts to omit the proposal, we will seek to enforce our rights in court," Ferlauto told Governance Weekly. (SEC Delays Proxy Access Again, 12/08/06)

For a discussion of a couple of items that will be taken up on the 13th, see If You Love a Company, Set It Free? (CFO.com, 12/8/06)

I'm sure the subject will be a major topic of discussion at Directors Forum 2007 next month in San Diego (January 21-23). List of speakers. Registration Information. Sign up here. Please be sure to mention Corpgov.Net when you register. I hope to see you there.

CEO Pay Top Issue for 2007

Directorship magazine warns boards will be replaced by angry shareholders if they mismanage the CEO pay issue. “CEO compensation continues to be the one issue that unites the fractious tribes,” the magazine said in an editorial. “Labor and religious groups, the proxy advisory and governance groups, the credit rating agencies and major pension funds and hedge funds may have conflicting agendas, but they can unite on CEO comp.”

Here are the primary forces at work, according to the magazine:

• Democratic victories in the House and Senate mean that politicians like Rep. Barney Frank, head of the House Banking Committee, are going to push for shareholder approval of CEO compensation.
• Companies are going to have to disclose a lump sum figure for how much a CEO gets paid in their proxies, as per new requirements from the Securities and Exchange Commission. This will have a “shock and awe” effect.
• Institutional Shareholder Services, the major proxy advisory firm, predicts a record number of shareholder resolutions seeking majority voting in support of directors. And more resolutions are going to seek an end to staggered boards. That means an entire board can be voted out at once.
• At a critical meeting on December 13, the SEC may give ground to the American Federation of State, County, and Municipal Employees (AFSCME), which wants the SEC to allow shareholders to nominate directors and to require companies to include those nominations in proxies.
• The New York Stock Exchange has moved forward with its plan to specify that broker-dealers holding shares in “Street name” will not be able to vote with management unless the actual owner of the shares, meaning investors, specifically direct them to do that. This will have an impact on voting percentages.

“If you add up all these forces, the reality may be that a board can now be voted out or dramatically transformed if it mismanages CEO pay,” says Editor in Chief William J. Holstein. “If companies allow coalitions of shareholder activists to form with major institutional investors and private equity funds, the result could be a huge wave of battles for control of companies.” (Directorship Magazine Predicts the 2007 Proxy Season Will Be a “Perfect Storm")

Wealth Gap

The World Institute for Development Economics Research of the United Nations University reports that in 2000, the top 1% of the world’s population — some 37 million adults with a net worth of at least $515,000 — accounted for about 40% of the world’s total net worth. The bottom half of the population owned merely 1% percent of the globe’s wealth. Median net worth was under $2,200. Fast growth and wealth accumulation in China and India since 2000 may have closed the average gap between rich world and poor to some degree.

According to the report, in 2000 the United States accounted for 4.7 percent of the world’s population but 32.6 percent of the world’s wealth. Nearly 4 out of every 10 people in the wealthiest 1 percent of the global population were American.

The average American had a net worth of $144,000. The average person in Luxembourg had $183,000; Japanese $180,000; Swiss $171,000; and Chinese $2,600. Among Americans, wealth is distributed about as unequally as it is around the globe. A recent study found that in 2004 the top 1% of Americans earned a higher share of the nation’s income than at any time since the 1920s. (Study Finds Wealth Inequality Is Widening Worldwide, NYTimes, 12/6/06) Narrowing the gap may be one of the best ways to fight terrorism.

Relationship Investing

Mutual Series managers look for companies that are way out of favor -- trading 30 percent or more below their worth. The funds also invest in distressed debt -- bonds of companies having problems meeting their obligations, some of them under bankruptcy-court protection. In addition, the funds bet on companies involved in mergers and acquisitions. And unlike at many rival fund companies, Mutual Series managers will take on the role of shareholder activist if a company's management is seen as hampering a stock's potential. (When fund managers play musical chairs, Pittsburgh Post Gazette, 12/04/06)

The C$103 billion (US$91 billion) Canada Pension Plan Investment Board will become more of an activist, investing up to C$5 billion in companies considered undervalued and deemed to have turnaround potential. The pension fund will purchase a 10% interest in a typically undervalued business and then team up with that company’s directors to devise ways of bolstering performance. The relationship portfolio will comprise up to six companies and, if successful, may be expanded to the international marketplace. (Canadian plan adopts activist investing role, Pensions & Investments, 11/27/06)

CorpGov Bits

Directors Forum 2007 uniquely features panels balanced to bring together Institutional Investors, Directors & Officers and Regulatory Organizations. Shareholder Panelists from TIAA-CREF, CalPERS, CalSTRS, Council of Institutional Investors, AFL-CIO and AFSCME and others. Directors & Management panelists from companies in-the news such as Pfizer, Coca-Cola, HomeDepot, EMC, Krispy Kreme, Ameriprise Financial, Time Warner, General Mills, Target, HealthSouth, AstraZeneca PLC, McDonald's. Government and Regulatory Organizations Panelists From the SEC, the ISS, NYSE, NASDAQ, Glass Lewis, GovernanceMetrics, PCAOB and ICGN. Keynote speakers include Paul S. Atkins, Raymond S. Troubh, Robert E. Denham, and Ann Yerger. Early Registration Deadline Ends December 4th!

European investors are realizing that it makes sense to participate in U.S. securities class-action cases by serving as lead plaintiffs, or by filing claims for their share of billions of dollars in settlements. (Europeans Take a More Active Role in U.S. Cases, ISS Corporate Governance Blog, 12/4/06)

CFO magazine article steps through recent attempts to link pay to performance. (Pay Daze, 12/01/06)

A summary of August A. Busch III six-year consulting agreement upon retirement as chairman of the Anheuser-Busch Companies, filed with the Securities and Exchange Commission, says the company “will also provide draught beer services and packaged products to your residence as you may request.” . ...At a media conference last week sponsored by Reuters, America’s highest-paid executive, Barry Diller, chief executive of IAC/InteractiveCorp, suggested that compensation consultants be “flushed into the East River.”(Keep the Gold Watch, Give a Bottomless Keg, NYTimes, 12/03/06)

Investors, led by the Teachers’ Retirement System of Louisiana, amended their complaint against Cablevision’s directors and executives to include legal claims against Lyons Benenson, a New York-based consulting firm. According to lawyers for the investors, the case may be the first time that a compensation consultant has been sued over a company’s option practices. More than 180 U.S. firms have disclosed internal or regulatory probes into their option practices, according to Bloomberg News. (Investors Sue Cablevision’s Pay Consultant, ISS Governance Weekly, 12/01/06)

Critics accuse Wal-Mart of destroying neighborhoods, exploiting its workers and discriminating against female employees. But when American consumers were asked to name a U.S. company that was socially responsible, they named Wal-Mart above all others. (The Best Corporate Citizens, Forbes.com, 11/28/06) Ouch!

Some securities lawyers are concerned that portfolio-monitoring services offered to institutional investors by plaintiff's lawyers are disguised attempts to stir up more lawsuits. (Attorneys question portfolio-monitoring services, Investment News, 12/04/06)

Footnoted sees a recent filing by MSC Industrial (MSM) as evidence that "no matter how much things seem to change — and how many executives whine about Sarbanes-Oxley — the more things stay the same." (The more things change…,12/ 4/06)

The corporate seat of power is not only getting hotter, but is increasingly equipped with an ejector button that directors are ever quicker to press. In fact, turnover in the corner office is heading toward a record high this year. According to the outplacement firm Challenger, Gray & Christmas, as of the end of October, 1,234 chiefs had left their jobs, compared with 1,110 by that time last year and a full-year total of just 663 in 2004. (Signing Up A New Chief In The Age Of Prenups, NYTimes, 11/25/06)

Colorado Directors Keep Posts

Robert McCormick, the vice president of proxy research and operations at advisory service Glass Lewis, says that 0.12% of directors up for election in 2005 failed to get a majority. That was down from 0.18% in 2004. Colorado directors were even more successful this year, with none of the 505 up for re-election failing to get a majority, according to a Rocky Mountain News analysis.

The News reviewed the most recent voting results for 98 of the 111 Colorado-headquartered public companies it tracks. Only 13 director nominees had more than 20% of votes withheld, meaning they failed to get 80% of the vote. Another 22 had 10-20%, meaning they fell short of 90%. In all, 423, or 84%, had fewer than 5% of their votes withheld, meaning they got 95% or more of the votes cast.

See Directors find elections tough to lose, Rocky Mountain News, 12/2/06, for the full article, which includes a board of directors scorecard for several Colorado companies.

AVI BioPharma Shareholder Advocacy Trust

One of the long unresolved issues in corporate governance has been how dispersed shareowners can ban together to take action to enact needed changes in the CEO, board or corporate governance of individual companies. Many large institutional investors belong organizations, such as the Council of Institutional Investors or the International Corporate Governance Network, which at least can facilitate such discussions. They can also afford to subscribe to proxy monitoring services, such as those provided by ISS and Glass Lewis, which advise them on firm specific issues. However, individual investors, especially those who have invested in small cap stocks, have more limited sources of information and few dedicated advocates.
For years I have endorsed the efforts of the Corporate Monitoring Project, especially their proposals to allow shareowners to choose a proxy advisory firm to be hired by the company, since this would eliminate the problematic free-rider issue, allowing all shareowners to benefit from independent professional analysis of the issues at nominal joint expense.

Now comes an interesting monitoring innovation with potential, the “advocacy trust.” The AVI BioPharma Shareholder Advocacy Trust was conceived and created by Richard Macary, a New York based independent analyst, corporate consultant, and venture capitalist, who believes AVI needs a change in senior management to capitalize on its paradigm-shifting technology.

The Trust is set up as a “statutory business trust” under the laws of the State of Delaware. The managing trustee for the Trust is The Shareholder Advocate, LLC, a Delaware Limited Liability Company majority owned and operated by Richard Macary, and the Resident Trustee is Christiana Bank & Trust Company. The trust agreement gives the “Managing Trustee” certain fiduciary powers and authority to take actions and expend money to advance the goals of the Trust.

According to its website, the advocacy trust “offers individual shareholders a vehicle and forum for voicing their concerns and obtaining greater influence on the direction of the Company. By supporting and contributing to the AVI Shareholder Advocacy Trust, shareholders like you will have the opportunity to speak with a combined voice that the management and board cannot easily ignore, and the Trust will have the power and resources to take appropriate actions if management and the Board are not responsive.”

Of course, the Trust “will have the power and resources to take appropriate actions” only if it wins adequate support from shareowners. The Trust doesn't own any stock itself. It is a not a “for profit” vehicle, which depends on voluntary contributions from shareowners. “Any funds not used by the Trust to achieve its objectives will be returned to the Trust contributors on a pro rata basis.”

Macary further elaborates in an e-mail. “In a way, it's similar to contributing to a campaign or political action committee where you agree with their platform or want to see a specific candidate elected, so you contribute. Your only upside in that scenario is that if your candidate wins, you believe it will be good for you or your position, be it lower taxes, a cleaner environment, less regulation, etc. The money gets spent by these groups to further their goals.”

The Trust is also set up to compensate the managing trustee, Macary, who conducts and coordinates research and advocacy efforts. “The trustee is very much like a general contractor in that he, she or they will essentially hire and direct all of the professional and advisors needed to execute upon the trust's goals. This would include legal representation, proxy firms, governance advisors, accountant (forensic if needed), industry consultants, executive recruiting firms, etc.” AVI Shareholder Advocacy Trust, set a cap on the compensation to no more than $5,000 per month based on up to 10% of the contributed trust assets.

At AVI, Macary found that some of the larger investors are not activists or they simply don't want to expend their limited time and resources to get into a proxy fight over what for them is likely a relatively small holding. While they are unhappy, they are also not motivated to do the amount of work needed to pressure the board and/or launch a proxy contest. However, they are willing to support someone else with a commodity that they have more of than their time, which is money.

I hope so. Since the advocacy trust model is dependent on voluntary contributions, Macary must present carefully laid out plans that shareowners believe require their financial support to succeed. If the Trust fails to convince shareowners of the viability of its plans, it won't attract necessary contributions. On the other hand, if it appears the efforts of the Trust will inevitably lead to victory, contributions may dry up as shareowners presume others will make the necessary contributions.

So far, Macary appears to be straddling that fine line. The Trust has certainly gotten good press, especially in Portland Oregon, where AVI is based. (New group targets AVI, Portland Business Journal, 10/27/06; The shareholders are revolting, Portland Business Journal, 10/27/06) It may be a good fit for micro or small cap companies where management has been an obvious and significant impediment to shareholder value and where individuals hold most of the shares. However, there needs to be a motivated shareowner base with at least one larger investor whose participation can motivate others.

The legal structure and sophisticated use of electronic forms of communication certainly appear to be a step up from efforts by other groups of relatively small shareholders. However, Macary's efforts might be even more likely to lead to success if he were also to embrace Mark Latham's corporate monitoring proposal (see Publications), which eliminates the 'free-rider” issue, ensures all shareowners receive analysis that might be done by the Trust or at their direction, and it would provide a mechanism whereby all shareowners who benefit from the increase in value that may result from such efforts also help foot the bill.

Directors Harder to Recruit

An executive from Korn Ferry estimated that 10 years ago it took roughly 90 days to fill a directorship; today it can take up to 180 days. Of the 391 new directors hired by S&P 500 companies so far in 2006, only 29% are active CEOs, a 38% decline from 2001. Meanwhile, the number of CFOs and other high-ranking execs among the new director hires jumped 67% over the same time period, and this year accounted for 15% of all new slots, according to executive search firm Spencer Stuart. (Board seats are begging for warm bodies, Financial Week, 11/27/06)

Blue Option

According to the Blue Investment Management’s research, an index of 76 “blue” S&P 500 companies that meet specific ethical criteria — think socially responsible stocks with a liberal political bent — would have beaten an index of 380 “red” stocks and the S&P benchmark by more than 120% and 105% respectively, over the five years ended June 30. (Talk about voting with your purse, Financial Week, 11/27/06)

Nazareth's Vote Key: AFSCME Forges Ahead

Annette L. Nazareth's vote may be key at the SEC's meeting on 12/13/06 on whether shareholder nominations for directors must be included in corporate proxies starting in 2007, according to an article published in Directorship (A Key Player in the SEC's Critical Vote, 11/29/06). SEC Chairman Chris Cox places a high priority on consensus and does not want a divisive 3-2 vote along party lines. The article indicates "it's possible that Cox will once again delay the meeting because of the sensitivity of the issue, but probably only for a month, until January. So it still appears that directors going into the 2007 proxy season will be contending with new rules for electing boards."

Roel Campos, one of two Democrats on the commission, told MarketWach (SEC 'struggling' on proxy-access issue - Campos, 12/1/06) he is pushing SEC Chairman Christopher Cox and other commissioners to provide "real shareholder access" to corporate proxy ballots, which would make it easier and cheaper for them to express dissatisfaction with corporate managers and boards. He said others on the SEC "just don't want any shareholder access at all," making compromise difficult. If a majority of the five-member commission can't agree on a response,

Campos said he thinks it ought to let the appellate court ruling in the AFSCME case stand. In that event, he said U.S. companies could not count on the SEC staff to support their efforts to block consideration of shareholder proxy-voting proposals, which would ensure that the issue is put to shareholders at some companies. SEC Commissioner Annette Nazareth, the second Democrat on the commission, told reporters that a do-nothing approach wouldn't be ideal. Still, she said, it would not be disastrous and might keep pressure on the commission to reach a long-term solution on shareholders' access to corporate proxy ballots.

Letting the AFSCME case stand, without modification, would allow shareholders to tailor iniatiatives to the specific circumstances of each company, a much better approach in my opinion than the complicated and burdensome SEC proposal that was shelved because of objections from incumbent CEOs who were concerned about losing power over their boards.

The November issue of Directorship carries an interview with Richard Ferlauto at AFSCME. Of course, their lawsuit over the ability to place nominees on the proxy at AIG led to reopening this most fundamental shareowner rights issue. Now they have filed a "books and records" demand under Delaware law, requesting internal documents from Home Depot on backdating of the stock options issue, board level discussions on the CEO's compensation and the decision- making processes. (The Voice of a Powerful Union) Ferlauto and AFSCME continue to break new ground.

November 2006

Flattery Counts

Examining survey data from a sample of managers and chief executives at Forbes 500 companies, the authors of The Other Pathway to the Boardroom find that managers who flatter, agree with and render favors to their chief executives are far more likely to receive board appointments at other firms where their chief executive serves as a director. This also applies, it is argued, to other companies where the chief executive is indirectly connected through board networks. Interpersonal influence behavior substitutes, to some degree, for the advantages of an elite background or demographic majority status. Findings help explain why norms of director deference to CEOs have persisted despite increased diversity in the corporate elite.

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"Paulson" Panel Pushes for Less Regulation

The 152-page Committee on Capital Markets Regulation Report makes 32 recommendations, places an emphasis on principles-based rules, modifying the private litigation system, and cutting back on the burden of regulations to improve the ability of US capital markets to compete with those abroad.

While the committee raises legitimate questions about the level of regulation and litigation, the Council of Institutional Investors thinks it views these issues through "far too narrow a prism, by focusing primarily on the market for initial public offerings." I agree. In fact, that is the problem with much of our regulatory scheme.

On one of the most fundamental issues, the right of shareowners to be able to place their nominees on the corporate proxy, the Report simply says "the SEC needs to address and resolve, in its upcoming hearings, appropriate access by shareholders to the director nomination process."

When it comes to protecting management, boards and auditors from liability, the Report is very specific. The trade-off for owners isn't equal. New York state's attorney general, Eliot Spitzer, who has taken the lead on several financial service investigations -- often outpacing the SEC -- lambasted the committee's recommendation to limit how and when state law-enforcement can pursue cases against financial institutions as "absurd," according to a report in the Wall Street Journal. (Financial-Rule Overhaul Hits a Nerve, 12/1/06)

Mr. Campos told the Consumer Federation of American annual financial services conference in Washington that the U.S. is losing business such as initial public offerings to foreign markets primarily because of increased competitiveness of foreign markets. Campos suggested a system under which shareholders holding at least 5% of a company's shares would have the right to include their own director nominations on company ballots. (Campos: Don't blame SOX for IPO woes, InvestmentNews, 12/1/06) (See also No thanks, Paulson committee, Financial Week,11/30/06)

The New Capitalists

Stephen Davis, on of the authors of our book of the year, The New Capitalists: How Citizen Investors are Reshaping the Corporate Agenda, is making the rounds. Interviewed by Forbes.com, he said: "Probably the biggest reform in the cards is the prospect of a real vote by shareholders on executive compensation policy. My own guess is there's going to be a grand bargain in 2007 between corporations, who want relief from Sarbanes-Oxley red tape, and shareholders, who want more accountability. My sense is there will be some easing of Section 404 of Sarbanes-Oxley in return for giving shareholders more power to elect board members and to have a say in executive compensation."

Of course, we embrace the vision of The New Capitalists. In Davis' words, "If companies behaved as if they were owned by everybody, you wouldn't see the massive CEO pay for failure that we've seen. You wouldn't see companies that are cavalier about environmental irresponsibility. There are still many obstacles to this vision as the authors acknowledge. "Companies don't behave as if they're owned by big funds representing millions of ordinary people and ordinary people that entrust their capital to funds don't consider themselves owners of major corporate assets." Stock turnover continues to accelerate, DB plans continue to erode, the gap between rich and poor widens.

However, shareholder resolutions related to sustainability received 24.4% of the vote, compared with 18% last year. Companies like GE have discovered they can make billions of dollars by getting into the business of environmental responsibility. Morningstar now has a stewardship rating, so you can try and find out if a mutual fund aligns its money managers' incentive pay with long-term savers or other interests. Mercer is rating fund managers on how well they're aligned with citizen savers. In the UK the law recently provided for a ramp up to 50% representation of employees in pensions, as is already required in Australia. Various Canadian provinces led by Manitoba are moving in this direction. 

We need more funds like TIAA-CREF where fund investors elect the board. And we need unions to demand joint administration of 401(k) contribution plans. Working together, we hope to get there.

Hain Celestial’s Executive Compensation Sky-High?

At Hain Celestial's annual shareholder meeting on Thursday, November 30, CEO Irwin Simon had better hope shareholders drink a big mug of Celestial Seasoning’s Sleepytime Tea before voting on the issues before them.  Although the stock has finally broken out of years of lackluster performance, shareholders will be asked to vote on yet another expansion of stock option benefits for the company’s top executives, further diluting shareholder value. 

Over the last 10 years while sales at the company have increased almost 1,000 percent, the value of each share of underlying stock has only increased one quarter of that amount.  Where has all that value gone?  “Into the pocket of founder and CEO Irwin Simon,” says Julie Goodridge, President of NorthStar Asset Management, Inc., a wealth management company based in Boston.  “We estimate that Simon’s compensation over the last decade has increased 688% and his net worth has increased by at least $75 million,” Goodridge says. “I suspect that the majority of the workers at the company haven’t averaged even a 68% per year increase in salary, bonuses and stock options.”  Worried about the long term impact of excessive executive compensation on shareholder value and employee morale, NorthStar Asset Management, Inc. asked Hain Celestial to review the compensation package of its CEO, Irwin Simon. Hain Celestial agreed to produce that report.

The compensation review, requested by NorthStar through a shareholder proposal, was made available to shareholders in July 2006.  The shareholder proposal asked specifically for data comparing the highest and lowest paid workers and an analysis of that data over time. In addition, the proposal sought a discussion of whether Hain Celestial’s executive pay was excessive and in need of modification. Further, the company was asked to explain whether the pay of highest or lowest paid workers should be adjusted to more reasonable and justifiable levels.

But according to NorthStar, the results of the report cannot be released to the public.  “The company would not release the report to us until we agreed not to discuss the findings with anyone,” said Goodridge.  “Given this year’s request by the Board to issue additional shares of Hain Celestial to further augment executive pay, we wonder if the Board has even read the Executive Compensation Review.  We plan to attend the annual meeting tomorrow to ask Hain Celestial to release the report to the investing public.  We feel that potential investors and members of the Board need to understand the impact of these excesses now, before shareholder value and employee morale plummet.” (unedited press release from NorthStar Asset Management, Inc., contact: Margaret J. Covert. Disclosure: CorpGov.Net's publisher, James McRitchie, is a Hain Celestial shareowner.)

R&D on Rise in India

According to a report in Corporate Governance: International Journal for Enhancing Board Performance, India's innovation basket is set to swell with the country drawing 25% of fresh global investments in R&D units outside the US or Europe. In the last few years, over 200 global companies have set up R&D hubs in India. According to Evalueserve, the value of R&D work done in India will touch $27.5 billion in 2010, despite an acute manpower shortage in candidates with advanced degrees. (India now draws 25% of global R&D spend, volume 6, number 4, 2006)

WSJ Pans "Shareholder Democracy"

The Wall Street Journal calls on the SEC to require better disclosure and to tweak the proxy process to get more shareholders involved rather than allowing direct proxy access. "Shareholder democracy," they write, is "a costly, divisive and deeply unfair proposal that would force many companies to bend to special-interests." What WSJ doesn't mention is that shareholder democracy would only require companies to bow to "special interests" is if owners of a majority of shares support the proposals. In that case, how can they be called special interests?

"Shareholders who feel a company is underperforming already have the ultimate "vote," which is to sell their stock," writes WSJ. "DuPont was asked to link executive pay to social criteria. General Electric was asked to report on the feasibility of ending its nuclear energy business. Merck was supposed to adopt a drug-price restraint policy, and Pepsi to report its political contributions in newspapers. Most of these proposals are rejected by shareholders who understand they have little to do with achieving higher returns on their investment. Yet companies are still required to spend shareholder money to address each proposal."

Of course, if shareholders could place their own nominees on the proxy, maybe they would concentrate their efforts on electing board members who would represent them, rather than trying to govern by what amounts to initiatives. If WSJ is really concerned that union-based pension funds will dominate shareholder access nominations, they should advocate the process be open to a broader group of shareholders, rather than only those holding 5% or more. (Board Games, 11/27)

CorpGov Bits

80% of S&P 100 companies dedicate webspace to sharing information on their social and environmental policies and performance; up from 34% last year. (Random Numbers, FinancialWeek, 10/16//06)

The number of directors who held more than two directorships at S&P 500 companies fell 13% between 2002 and last year. More than other board members, these facilitator of new ideas -- both good and bad. (The Mighty 15: Directors spread ideas like virus, FinancialWeek, 11/13/06)

Women continue to make slow progress. From 0.6% of CEOs in 2000 to 2% in 2006. These numbers are expected to grow to 4.9% in 2010 and 6.2% by 2016, according to a study quoted in BusinessWeek. (Corner Office Crawl, 12/4/06) According to Critical Mass at Wellesley, women directors, who still hold less than 15% of Fortune 500 seats, make three distinctive types of contributions that men are less likely to make. They broaden boards’ discussions to include the concerns of a wider set of stakeholders, including shareholders, employees, customers, and the community at large; they are more persistent than male directors in pursuing answers to difficult questions; and they often bring a more collaborative approach to leadership, which improves communication among directors and between the board and management. (see also Women on Board, for Better Governance, The Motley Fool, 11/24/06)

Nationwide, the 30-year tab for government employee health-care costs in retirement could hit $600 to $1.3 trillion, according to a JPMorgan benefits specialist, under newly required GASB standards. (A Shock To The System, BusinessWeek, 12/4/06) From a corporate governance standpoint, it appears likely to put pressure on to convert funds such as CalPERS from DB to DC plans. On the other hand, many governments are likely to substantially increase funds into these activist funds to pay for future benefits.

Governance ratings differ. (Corporate governance report cards prove tricky, Reuters, 11/24/06)

Compliance with constantly evolving corporate governance rules has become the top priority for in-house company lawyers. Much of the anxiety has been driven by the Sarbanes-Oxley investor-protection law. Yet two out of three private companies do not purchase fiduciary liability insurance, according to research commissioned by the Chubb Group. (Corporate governance tops list of concerns for in-house counsel, Chicago Tribune, 11/7/06)

My fondness for Gretchen Morgenson, the NYT's prominent business columnist and reporter, apparently isn't shared by everyone. (Evaluating Gretchen Morgenson, Ideoblog, 11/26/06)

Of new issues over $100 million this year, LSE-listed stocks are up only 11%, vs. 20% for NYSE stocks, a reversal of 2005 results, according to Dealogic. The share prices of NASDAQ issues of at least $100 million beat those on London's AIM, rising 5.5%, vs. a 0.5% drop this year, and 35.2% vs. 12.3% in 2005. (A Thanksgiving Holiday of Stock Exchange Cheer, My Daily Fatwa, 11/25/06)

55-60% of the errors triggering recent misstatements were "simple misapplications of [generally accepted accounting principles] or books and records problems, " according to Scott Taub, deputy chief accountant of the Securities and Exchange Commission. "In 50 percent of the restatements, there was no information about how the company found the errors," Taub said of his findings. When they restate, companies would do well to disclose how they found the triggering errors, he added. (Restatements: Stupid Human Tricks?, CFO.com, 11/27/06)

ETFs LLC, has an application for actively managed exchange-traded funds pending at the Securities and Exchange Commission, TheStreet.com reports. And the American Stock Exchange is working on creating one. (Firms Getting Closer to Actively Managed ETFs, MMExecutive, 11/27/06)

Governance Players Predict: "The Next 30," Directors & Boards, 4th quarter 2006

John J. Castellani, president of the Business Roundtable, writes that "boards must reform investors," using "their new political skills to remind investors that our economy is the envy of the world because of companies that are run by trained managers who focus on long-term performance." If they faill, boards "may be forced to pick the specific investors or the specific agendas to which they want to respond."

The most thoughtful predictions came from John Wilcox, head of Corporate Governance of TIAA-CREF:

Masquerade

Forbes.com carried a rant by Peter J. Wallison, a resident fellow at the conservative American Enterprise Institute calling on the SEC to reaffirm its policy that contests for board seats should be carried on only through proxy solicitations, and that companies be allowed to exclude by-laws or other devices that seek to allow shareholder nominees to be included in corporate proxy statements. (Shareholder Activists: Premature Elation?, 11/16/06)

Wallison criticizes AFSCME's effort at AIG since it is clearly a "proxy access proposal masquerading as a by-law amendment." He completely misses the point of the court in the AFSCME v AIG decision. The original intent of the SEC's rule was to prohibit the use of the resolution process to support specific candidates in a current election, not to ban the use of that process in deciding how future elections would be conducted. That "intent" only changed when it appeared shareholders would actually be turning corporate elections into contests. It will be interesting to see what distorted logic the SEC comes up with at their December meeting.

Free Seminar on Fiduciary Responsibilities

Getting It Right - Know Your Fiduciary Responsibilities, a compliance assistance seminar sponsored by the US Department of Labor's Employee Benefits Security Administration (EBSA), will take place in Sacramento, California, on December 5. The free seminar is part of EBSA's national fiduciary education campaign to increase awareness and understanding about basic fiduciary responsibilities associated with operating private-sector retirement plans. Register by 11/27/06.

Book of the Year

In their book, The New Capitalists: How Citizen Investors are Reshaping the Corporate Agenda, Davis, Lukomnik, and Pitt-Watson build upon and extend the work of Peter Drucker (The Unseen Revolution) as well as James P. Hawley and Andrew T. Williams (The Rise of Fiduciary Capitalism). Although the transfer of ownership to middle and working class Americans predicted by Drucker has largely occurred, there has been a lag in the accountability of managers to these new citizen owners who want corporations to pursue sustainable development that does not depend on shifting expenses, such a pollution, to society in order to profit.

The “new capitalist” model hangs on a premise of near “universal owners.” That is, most citizens are shareowners and are highly diversified in their investments. Through investments in pension, mutual, and other collective funds, they hold a tiny share in thousands of companies around the world. In essence, ownership of corporations has shifted from a few wealthy individuals to society at-large, the “new capitalists.”

With corporate ownership so broadly based, it no longer makes sense for shareowners to encourage corporations to profit by polluting the environment, because these same owner citizens will have to pay for the cleanup and the cost of cleanup is generally more expensive than the cost of avoidance. With society and shareowners becoming one and the same, Davis, Lukomnik, and Pitt-Watson (DLP) offer ten rules, which they term the new “capitalist manifesto,” to guide corporate boards in creating harmony within the circle of accountability between the corporation, shareowners and other stakeholders:

1. Be profitable -- create value.
2. Grow only where you can create value.
3. Pay people fairly to do the right things.
4. Don't waste capital.
5. Focus where your skills are strongest.
6. Renew the organization.
7. Treat customers, suppliers, workers and communities fairly.
8. Seek regulations that ensure your operations do not cause collateral damage and your competitors do no gain unfair advantage.
9. Stay clear of partisan politics.
10. Communicate what you are doing and be accountable for it.

In discussing corporate boards, DLP point to the lack of information, the influence of management and incompetence. The Corporate Library, GovernanceMetrics International, Institutional Shareholder Services and BoardEx have sprung up to analyze how well board members represent owners, facilitating their mobilization. “Contested elections” in the US are something of an irony, DLP point out, “as if elections by right should be unanimous.” There is a “spreading consensus that directors should be appointed and removed by owners, much the way members of parliament or Congress are chosen, and removed, by citizens.”

However, the book is not just concerned with the accountability of corporations. It also examines how well institutional investors perform in the role of overseeing the corporations in which they have invested. Mutual and pension funds generally get paid based on how much they manage, not what they earn. “Free-rider” problems reduce their incentive to behave as owners, since most of the gains from activism will go to others. Pay structures incentivize short-term performance and trading, rather than owning strategies.

Activist funds, such as Relational and Hermes, which charge performance fees based on returns, address some of these issues. Rating agencies, such as Morningstar's “Fiduciary Grade,” help funds evaluate board independence and assess alignment of manager pay with fund performance. TIAA-CREF and CalPERS are held up as examples where conflicts of interest are reduced by allowing at least some trustees to be elected directly by members.

More than others before them, the authors spell out an agenda to help clear the obstacles to accountability between corporate boards, executives, and investors, as well as governments and regulators, civil society groups, and information providers. Thirty pages of “action memos” are included to managers and directors; institutional investors; individual investors and beneficiaries; analysts, advisors, and auditors; civil economy groups; politicians and policy makers; and economists and researchers. Each “memo” contains sound advice.

Boards, for example, are advised to allow “shareowners to both elect and remove directors by majority rule, and to influence the nomination of candidates for the board.” Institutional investors should “practice what you preach” with regard to transparency. One recommended model is the International Governance Network's Statement on Institutional Shareholder Responsibilities.

Individual investors and beneficiaries are warned to “lobby for meaningful investor representation” and to “select funds based on their readiness to pledge real allegiance to you.” Auditors are advised to measure contingent liabilities within a range of probabilities, rather than exact numbers, since the exact number chosen for low-probability but high-impact events, like an oil spill, is often zero.

They call for a grassroots network of shareowners to push shareowner-friendly legislation and regulations and to lobby mutual fund boards. Empowered owners are seen as an “antidote to public alienation from globalization as a distant and unaccountable force.” Their position appears consistent throughout. Accountability is best obtained through principles of economic democracy. Auditors should be responsible to fund/plan members, not management. Fund trustees, like corporate board members, should be elected by employees/savers/shareowners themselves. It's a powerful vision of a sustainable civic economy based on democratic accountability.

The New Capitalists: How Citizen Investors are Reshaping the Corporate Agenda is our choice for book of the year 2006.

Political Contributions Yield Over-Size Returns

A study of corporate contributions to U.S. political campaigns from 1979 to 2004 finds the more candidates a firm supports, the higher are its next year’s raw and abnormal returns. The average firm participating in the political donation process contributes to 73 candidates over any five year period, 53 of which go on to win their elections.

The number of supported candidates has a statistically significant positive relation with the cross-section of future returns for firms which contribute to candidates. In fact, within our sample, the effect of firm contributions is more important than many of the established predictors of the cross-section of returns (more important than book-to-market and capitalization) and is about as important as a momentum variable.

A one standard deviation change in the number of supported candidates corresponds to about a 50 basis point per month increase in returns, implying that if a firm increases the number of supported candidates by about 96 candidates, it will experience an increase in annual returns of approximately 6%. The contribution effect appears to increase for firms that have longer relationships with candidates, support more home candidates, and support more powerful candidates.

Republican candidates typically receive higher total dollar contributions than Democrats and Republican candidate contributions come from a larger number of supporting firms than do Democrat candidates’ contributions. Despite the fact that Republicans receive more contributions than Democrats, the effect is stronger for firm contributions to Democratic candidates, although contributions to Republican candidates also result in statistically significant increases in firm returns.

Changes in ROE are strongly related to the number of supported candidates and other measures of contributions. Greater political contribution effects are found for industries with a smaller number of firms, more heavily concentrated sales, and a higher percentage of unionized employees. Contribution effects are “rational” to the extent they are linked to real increases in firm profitability and is stronger within industries which may be more likely to benefit from political connections. However, the authors indicate the effect is “irrational” from the high rate of return, in general, to political contributions, given the annual return on investment from a portfolio weighted by the total-number-of-supported-candidates to be an absurdly high 654,836%. (Corporate Political Contributions and Stock Returns, Cooper, Gulen and Ovtchinnikov, 10/24/06)

The paper extends the work of others who have found there are positive shareholder wealth effects to being connected and the value of being connected is greater in more corrupt countries. Those who advocate that companies to forgo political contributions, myself included, must do so through regulations, since companies who continue the culture of corruption would appear to have an unfair advantage unless mutual disarmament can be assured.

And another current example: "When workers confront globalization, they are told to adapt, take their pink slips and go to night school. It is the harsh downside of an integrated world economy that has on balance significantly enriched the country. When financiers feel the pinch from competition in Hong Kong and London, they run to the Bush administration for rule changes." (The Corporate End Run, NYTimes editorial, 11/12/06)

Women Directors Add Value

Critical Mass on Corporate Boards: Why Three or More Women Enhance Governance was based on interviews with 12 CEOs, 50 women directors, and seven corporate secretaries of Fortune 1000 companies. The study found that women impact board governance in at least the following three ways:

1. by bringing different perspectives into boardroom discussions, including the perspectives of multiple stakeholders,
2. raising difficult issues--that is the study found that difficult problems are less likely to be ignored when women are in the board room, and
3. by altering the dynamics in the board room to create more open and collaborative discussions, thereby allowing management to hear board concerns without feeling defensive.

SICA Questioned

Les Greenberg, who decided approximately 50 securities arbitration awards in the past 15 years and who practiced for more than 30 years as a securities lawyer, obtained Securities Industry Conference on Arbitration (SICA) minutes dating back to 2004 that point to troublesome issues. They revealed an intended "survey" to show how public investors feel that mandatory securities arbitration before groups owned by securities firms is fair.  However, if the survey fails to support such a finding, it appears that it may not see the light of day.  Greenberg contends, "pharmaceutical companies could take a lesson from SICA on how to rig surveys.  It is most shocking that 4 to 6 SEC representatives attend SICA meetings and raise no concern whatsoever."

Additionally, Greenberg has complained to the Office of the Inspector General of the SEC that the SEC was using SICA as an “advisory committee,” yet not adhering to the dictates of the Federal Advisory Committee Act.  That statute requires SICA to publish notice of its meetings, conduct public meetings, and permit public access to its minutes, records, and reports. 
  
For more information, see SICA "Survey" and Minutes of SICA Meetings Obtained A Through Freedom of Information Act Request Meeting Minutes.

Free Seminar on Fiduciary Responsibilities

Getting it Right: Know Your Fiduciary Responsibilities, a compliance assistance seminar sponsored by the U.S. Department of Labor's Employee Benefits Security Administration (EBSA), will take place in Brookfield, Wisconsin, on November 8. The free seminar is part of EBSA's national fiduciary education campaign to increase awareness and understanding about basic fiduciary responsibilities associated with operating private-sector retirement plans.

Research Report on Corporate Elections from The Corporate Library

Director Elections: Impact of Regulatory Changes and Shareholder Activism on the Market for Corporate Leadership ($495). The market for corporate leadership refers to the collection of mechanisms through which board positions are allocated among those willing to serve as corporate directors. In a well-functioning market there would be strong competition among willing candidates to provide this service and strong competition among boards for the best candidates. Lack of competition in the market for corporate leadership undermines the credible threat of replacement of board members for poor performance. Without the credible threat of replacement individual directors are able to ignore shareholder wishes. The formal mechanism through which board seats are allocated is director elections. In the 14-page report, Senior Research Associate Jackie Cook addresses meaningful director elections as a crucial component of good governance of public corporations, and explores the recent regulatory and shareholder initiatives that are shaping director elections in the US, and the likely impact of these on the market for corporate leadership. The Corporate Library.

Toward Democracy

John Connolly, CEO of Institutional Shareholder Services, told those attending Directorship magazine’s Agenda 07 Boardroom Forum in New York the number of majority voting resolutions next year will hit 450, up from 140 in 2006 and just 89 in 2005.

Another push will be staggered terms. 53% of publicly traded companies in the United States are now declassified. In 2006, there were 94 proposals that came before US company boards of directors to declassify their boards.” Many of them won 80% to 90% support from shareholders. This year we can expect more.

After discussing the AFSCME v. AIG court case, Forbes.com notes that a Democratic win of one house of Congress could persuade the SEC to support some or all of what AFSCME is after (the ability of shareholders to place their nominees on the corporate proxy). If it does, and if majority voting and declassification trends continue as expected, "companies in 2007 will for the first time taste what shareholder democracy is all about. Buckle up those seat belts." (The Other Elections, Forbes.com, 11/06/06)

Some Republicans Push DC Plans

According to a report in Pensions & Investments (Candidates spar on DB vs. DC, 10/30/06), Republican candidates in several states have taken the lead in touting defined contribution plans this year.

In New York and Massachusetts, Republican gubernatorial candidates John Faso and Kerry Healey have called for new public employees to be enrolled in defined contribution plans. Ron Saxton, the Republican nominee for governor in Oregon, and Anne McCarthy, the GOP candidate for Maryland’s comptroller, say that idea should be studied.

In Illinois, Republican challenger and state Treasurer Judy Baar Topinka has also mentioned the need to study a defined contribution plan option. There’s no clear momentum in favor of dumping DB plans at the moment but that could change as regulatory changes force states and cities to clearly disclose what they owe in benefits.

Changes in federal laws governing pension plans, accounting modifications and funding shortfalls signal the demise of defined-benefit plans, said Robert Pozen, chairman of MFS Investment Management of Boston. Today, the number of defined-benefit plans stands at about 30,000, down from 114,000 in 1985.

While 401(k)s were first offered as supplements to traditional pensions, the latest data shows that 90% of 401(k) plans are the only retirement plan offered by that employer. In 2002, some 350,000 employers offered 401(k) plans as their sole retirement plans. Three-fifths of those stand-alone plans were started in 1995 or later. Mutual funds account for roughly half of the assets in 401(k) plans. (401(k) Plans: A 25-Year Retrospective, Investment Company Institute)

ETF Managers Invest Elsewhere

According to the most recent SEC filings available from State Street Global Advisors and Barclays Global Investors -- two companies that together manage about 85% of ETF assets overall -- managers had invested their personal money in only about six of the 100 or so ETFs they managed at the time of those filings. By comparison, an August study by researchers at the Georgia Institute of Technology, London Business School and the University of South Florida showed that 43% of managers of traditional mutual funds in a sample of 1,400 funds had invested in the funds they ran through the end of 2004. (ETF managers go elsewhere to invest, Pittsburgh Post-Gazette, 11/3/06)

Optomistic Projections

Below is a list of ten board trends from John Wilcox, Head of Corporate Governance of TIAA-CREF, from a recent article in the Directors & Boards e-Briefing followed by ten optomistic rules for corporate boards ("A Capitalist Manifesto") from the book The New Capitalists: How Citizen Investors are Reshaping the Corporate Agenda by Stephen Davis, Jon Lukonmik and David Pitt-Watson:

1. Majority voting and the right of shareholders to vote against directors will become the norm, replacing the plurality vote standard in U.S. director elections.
2. Executive compensation will be brought into line by a combination of factors: enhanced SEC disclosure requirements, an advisory shareholder vote on compensation committee reports, and recognition of the need for internal pay equity.
3. Separating the roles of chairman and CEO will become more common at U.S. companies, encouraging boards to worry less about preserving power and more about developing and incentivizing the best executive talent.
4. The model of the imperial, celebrity CEO will be replaced by the stewardship model, with Reginald Jones unseating Jack Welch as the role model.
5. Sustainability and corporate social responsibility, formerly relegated to gadflies and special interest groups, will be recognized as key corporate governance responsibilities for which directors should be held accountable.
6. Shareholder communications and proxy voting systems will be revamped by the SEC to make better use of technology, reduce costs, increase efficiency, and improve a board’s ability to identify and communicate with shareholders.
7. Shareholder resolutions will be overtaken by other forms of constructive engagement, and shareholder activism will become less confrontational, more responsible--and more effective.
8. The definition of beneficial ownership will become more complicated and problematic as stock lending and derivative investment strategies enable investors to separate voting rights from any economic interest in the underlying stock.
9. The spotlight will shift from the governance of companies to the governance of institutional investors, with a focus on how institutions should best fulfill their conflicting duties to maximize returns while acting as responsible owners.
10. Companies will come to recognize that corporate governance is not just a matter of regulatory compliance and accountability but a strategic means to lower the cost of capital, reduce risk, create value, and strengthen the long-term performance of the corporate enterprise. (What’s Next for Boards? Ten Landscape-Altering Trends, Directors & Boards, 11/23/06)

A Capitalist Manifesto (more on The New Capitalists later this month in CorpGov.net but read a favorable review in P&I now)

1. Be profitable -- create value.
2. Grow only where you can create value.
3. Pay people fairly to do the right things.
4. Don't waste capital.
5. Focus where your skills are strongest.
6. Renew the organization.
7. Treat customers, suppliers, workers and communities fairly.
8. Seek regulations that ensure your operations do not cause collateral damage and your competitors do no gain unfair advantage.
9. Stay clear of partisan politics.
10. Communicate what you are doing and be accountable for it.

Funds Seek Disclosure of Pay Consultant Conflicts

Retirement systems, which control nearly $850 billion in assets, have asked the 25 biggest U.S. companies by market value to disclose more about the consultants that advise their boards on executive compensation. The funds want to know if the consultants receive other business from the companies, possibly influencing their compensation recommendations.

"Multiple business relationships within a company may compromise the independence of a recommendation to the compensation committee and may jeopardize shareholder confidence," the funds wrote in their letter. The funds ask the companies to answer two main questions: Does their compensation consultant provide other services? Do they have a policy prohibiting this?

In the next round of pay disclosures, companies must name their consultants and describe their compensation-related work, said Paul Hodgson, senior research associate with The Corporate Library, but they're not required to disclose their fees or other services they provide the company. (Watchdogs targeting pay consultants, The Charlotte Observer, 11/4/06)

Investors Seek Access

According to ISS' Governance Weekly, a group of 16 institutional investors from six countries with some $3.4 trillion in assets under management sent a letter to the SEC urging them to allow proxy access proposals on corporate ballots next season.

The international investors noted that experience in other countries has shown that boards whose members can be removed by shareholders are more sensitive to investors' opinion and are more likely to engage in a meaningful dialogue. “Experience in those markets has been that the rights of shareholders to reject nominees, to propose a nominee to the board, and to call an extraordinary general meeting to vote upon change in board composition do not destabilize companies, nor do they lead to contested elections.” “On the contrary, they help to stabilize potentially volatile situations because directors and managements are more likely to take their shareholders' concerns seriously.” (International Investors Weigh in on Proxy Access, 11/3/06)

Governance Leadership May Pass to CalSTRS

CalPERS has long been considered the undisputed leader in advocating good corporate governance. However, the latest move may put their cross-town rival ahead, at least in terms of moral authority, since CalSTRS has taken the lead in applying good governance principles to their own operations. However, by failing to adopt many of the policies into regulations, the authenticity of their commitment could be called into question, as well as the enforceability of the policies.

CalSTRS will crack down on "pay-to-play" with a series of policies and regulations. The policy changes, which will be effective January 1, 2007, include:

• A pledge that confirms board member independence and understanding of fiduciary duty;
• Rigorous conflict of interest language to avoid nepotism or the appearance of nepotism;
• Increased disclosure of communications between board members and third parties regarding investment transactions;
• Full disclosure of communication initiated by a board member to a staff member or consultant if the communication could reasonably be interpreted as an attempt to influence a specified outcome regarding an investment transaction;
• Provisions for investigating undue influence claims;
• Disclosure of placement agent relationships and payments;
• Requires 12-month recusal from any decision involving a campaign contributor or gift maker where the amount exceeds $250 to a board member; and
• Provides a $250 ceiling on the giving of a charitable contribution at the request of a board member and a $360 ceiling on gifts to a board member in any given year.
  

Additionally, other policy changes were approved that must proceed through the Administrative Procedure Act (APA) rulemaking process and could take up to one year to implement. Those changes would:

• Restrict campaign contributions to board members, including the Governor or candidates for governor, to no more than $1,000 in any year; and
• Provide financial penalties for violation of the campaign contribution and gift limits.
  

Any violation of the contribution and gift limits will lead to disqualification from doing new business with CalSTRS for two years. Once the regulations are in effect, those with existing business relationships with CalSTRS shall be subject to a fine of $10,000 or the amount equal to the value of the impermissible campaign contribution, whichever is greater.

Previously, most of the firms were limited only by state campaign finance rules, which in an election year allow individuals and companies to give up to $44,600 to a candidate for governor and $11,200 to treasurer and controller candidates. Financial firms, including investment banks, venture capitalists, hedge funds and financial advisory services, gave at least $27 million this year to the governor, Treasurer Phil Angelides and Controller Steve Westly.

CEO, Jack Ehnes indicates, “These rules are modeled after those set forth in 1993 by the SEC for the municipal securities sector which have proven effective in curbing conflict of interest issues. Our new board governance policy is the toughest set of standards in the nation on ethics, putting CalSTRS in a very select group among our industry peers. It’s a matter of public trust and it’s time to take action.” "This will start a rally through the pension industry," he said "you can guarantee that."

"Our goal is to make sure we don't make investment decisions based on the political contributions people give," said Anne Sheehan, who represents Gov. Arnold Schwarzenegger on the board and led the push for the ban.

The issue flared up again this spring during the Democratic gubernatorial primary between state Treasurer Phil Angelides and Controller Steve Westly, trustees of CalSTRS and CalPERS, the nation's two largest public funds with combined assets of about $370 billion. (Pension fund won't invest in big donors, LATimes, 11/4/06) (CalSTRS beefs up limits on donors, SacBee, 11/4/06)

Eight years ago, CalPERS adopted limitations, but they were overturn because they weren't adopted as regulations, which can be enforced as law. From the breadth of the proposed policies, CalSTRS may face a similar challenge.

According to the APA, "regulation" means every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure. (Government Code section 11342.600) There is an exception that applies to internal policies that affect only employees of the issuing agency and does not address a matter of serious consequence involving an important public interest. (What is a Regulation?)

It seems clear that many of the policies adopted by CalSTRS involve "a matter of serious consequence involving an important public interest." It would be a shame if CalSTRS rules are also overturned because they fail to adopt them through the required process. While I applaud CalSTRS for their bold move, I fail to understand their reluctance to go through the rulemaking process which offers many important protections, including enforceability.

Action-Oriented Guide

The Triple Bottom Line: How Today's Best-Run Companies Are Achieving Economic, Social and Environmental Success, by Andrew W. Savitz with Karl Weber, focuses on how companies can be more profitable by “doing the right thing.”

Savitz believes we are entering an “age of accountability,” something we at CorpGov.Net have been pushing for more than a decade. Customers, workers, neighbors and shareholders all demand a voice in how businesses are run. If politics is inescapable, engagement is a better long-term strategy than retreating to the corporate bunker. “Will you take on this challenge consciously and willingly, using the full array of tools, techniques, and strategies available to you? Or will you do it grudgingly, semi-intentionally, and probably ineffectively?”

But The Triple Bottom Line isn't focused on just reacting to criticism. Instead, it provides advice and many high definition examples on finding the sustainability “sweet spot” between business and social interests; that area where stakeholder and corporate interests overlap.

Certainly most companies are beginning to accept that sustainable approaches can protect them from environmental, social and ultimately financial risks, but the sweet spot also points to greater efficiencies, new products and services, improved reputation and higher employee morale.

The International Organization for Standardization (ISO) plans to issue guidelines for social responsibility in 2008, similar to those for quality (ISO 9000) and environmental management (ISO 14001). The sustainability movement appears to be reaching critical mass. Hopefully, it will do so in time to avert the worst effects of global warming, which unlike AIDS and poverty, seems to strike a cord with the American middle class. “Natural disasters” are increasingly hard to ignore.

Savitz says he “wrote the book for millions of mangers who need to know what this is (the triple bottom line), why it is important to their company, how it relates to their job and how to get going if they are so inclined. And they can read cover to cover on the plane from New York to California.” (I read it while flying from Sacramento to Hilo, Hawaii.)

“It's full of easy to grasp stories, simple but I hope useful constructs, and some sound-bites and phrases that may stick. These folks hold the key to the castle on this and I am hoping this book will provide a map to the treasure,” says Savitz.

When I told Savitz the book seemed like mom and apple pie, he responded: “Finding the sweet spot is mom and apple pie, but it isn't always easy. Some of the companies get the pie in their face when they flunk sustainability 101, starting in Chapter One with Hershey of all companies.”

His approach is a good one. He tells informative stories of how others have gained by searching for and finding the “sweet spot.” Then he offers very practical advice such as starting small, looking at customer needs, working with supply chains, starting with current skill sets, anticipating change, empowering individuals, integrating sustainability into operations, creating virtual communities, stakeholder mapping and partnering. He also points readers to powerful tools, such as the Global Reporting Initiative (GRI) self-assessment guides.

The appendix provides framework of key action steps, useful in other endeavors as well triple bottom line efforts.

If airport bookstores around the globe will stock The Triple Bottom Line, passengers might find their own sweet spot between another mindless movie and putting out another fire at work. Protecting the environment and strengthening the social fabric while making a profit; who can argue with that? Savitz provides a useful map of just how you can benefit from the experience of others who have already found the treasure.

A copy of the Commission’s press release is available on the SEC’s website.

It is unclear, at this point, what specific amendments to Rule 14a-8 will be proposed. If the proposed amendments will be to change the language of Rule 14a-8(i)(8) to specifically permit the exclusion of “proxy access” proposals, this will mark a huge step backwards. Not only would such amendments deprive shareholders of the needed opportunity to adopt rules that would ensure true corporate democracy at their corporations, but they would signal a disturbing anti-shareholder stance being taken by the SEC itself. As former SEC Chief Accountant Lynn Turner recently commented, the SEC’s meeting on October 18, 2006, notably timed before the November elections, “will give investors a clear cut statement as to whether this Commission is still ‘The Investors’ Advocate’ as then Chairman Douglas stated, or has evolved into another role.”

We strongly urge you to contact the SEC to make known your feelings on “proxy access.” As noted above, the SEC has scheduled a public meeting for October 18, 2006. Details regarding the location and agenda will be released during the week of October 9. We urge you to make every effort to attend. In the meantime, you can contact the SEC directly to voice your opinion on this very important issue.

Hon. Christopher Cox, Chairman
chairmanoffice@sec.gov

Hon. Paul S. Atkins
atkinsp@sec.gov