Policy and Legal

The Securities and Exchange Commission clearly has the authority to “adopt commonsense measures to protect investors” from “the most influential voices” in the proxy voting process: proxy advisory firms, the NAM’s Legal Center told the U.S. District Court of Appeals for the D.C. Circuit this week.

What’s going on: On Thursday, the NAM filed a reply brief in Institutional Shareholder Services Inc. v. Securities and Exchange Commission—a challenge, launched in 2019 by ISS, to the SEC’s statutory authority to enact critical proxy firm reforms.

• With its main competitor, Glass Lewis, ISS controls 97% of the proxy advice market and influences nearly 40% of the U.S. shareholder vote. Proxy firms are large, influential and unregulated entities that frequently dictate how shareholders should vote on proxy ballot proposals that come before public companies.
• The NAM’s brief explains that the SEC is “well within its statutory authority over the proxy process to regulate the entities that exert perhaps the greatest influence on that process” and asks the court to overturn a lower court’s ruling last February holding that the SEC lacks the authority.
• The brief is our latest move in a years-long effort to ensure reasonable oversight and regulation of proxy firms.

The background: In 2020, the SEC finalized an NAM-backed rule that put into place critical proxy firm reforms, including a requirement that the firms disclose any conflicts of interest.

• Though the NAM successfully fought across multiple pieces of litigation to preserve the 2020 rule, the SEC itself chose not to appeal the ISS case after a district court in 2024 sided with ISS in the proxy firm’s suit against the SEC.
• The NAM as intervenor-appellant has remained in the fight, making manufacturers the sole bulwark against proxy firms’ unchecked power.
• A victory for the NAM in the D.C. Circuit would make the proxy firms subject to the 2020 rule’s important reforms.

Why it’s crucial: Proxy firms “pose a real threat to Americans’ financial security,” NAM Managing Vice President of Policy Charles Crain told Congress in September.

• “Their errors and conflicts of interest put their own profits above Main Street investors’ retirement savings, their inflexible policies and refusal to engage with companies result in one-size-fits-all recommendations, their robo-voting swings investor votes in their favor and they advance ESG agendas that ignore, or even harm, shareholder value.”