The Securities and Exchange Commission will not enforce a Trump-era rule that restricts the practices of proxy advisory firms.
The rule requires that proxy advisory firms share their voting recommendations with the public companies that are the subject of those votes before sending them to clients or at the same time. The rule also requires those firms to inform clients about the companies' response to their recommendation and to disclose any conflict of interest in their voting advice.
SEC Chairman Gary Gensler announced this week he was directing staff "to consider whether to recommend further regulatory action regarding proxy voting advice." In light of that directive, the agency's Division of Corporation Finance said it "will not enforce the rule … while it considers further regulatory action."
The rule took effect on Nov. 2, 2020, but compliance is not required until Dec. 1 of this year. If there is no new regulatory action before Dec. 1, the Division of Corporation Finance said it will not recommend any enforcement action "for a reasonable time after any resumption" of a lawsuit by Institutional Shareholder Services challenging the SEC rule.
ISS had sued the agency in 2019 over guidance that advice provided firms like ISS constitutes a solicitation under federal proxy rules under the Exchange Act, which "authorizes the Commission to establish rules and regulations governing such solicitations as necessary or appropriate in the public interest or for the protection of investors." It paused the suit while the SEC was working on finalizing new proxy rules, then reactivated it after the new rules were finalized.
