La Division of Corporation Finance de la Securities and Exchange Commission (SEC) a publié le 1er novembre 2017 un Staff Legal Bulletin No. 14 intitulé « Shareholder proposals ».
This staff legal bulletin provides information for companies and shareholders regarding Rule 14a-8 under the Securities Exchange Act of 1934.
This bulletin is part of a continuing effort by the Division to provide guidance on important issues arising under Exchange Act Rule 14a-8. Specifically, this bulletin contains information about the Division’s views on:
the scope and application of Rule 14a-8(i)(7);
the scope and application of Rule 14a-8(i)(5);
proposals submitted on behalf of shareholders; and
the use of graphs and images consistent with Rule 14a-8(d).
MSCI Inc., whose indexes guide the investment of about $11 trillion in assets, delayed a decision on whether companies that deprive public shareholders of voting rights should be barred from its benchmarks.
The company also broadened its investigation to consider “a discussion on the treatment of all types of unequal voting structures,” according to a statement Thursday.
(…) In its statement Thursday, MSCI noted such concerns. MSCI has been reviewing what to do since June. During that process, a minority of firms that voiced opinions “were strongly against the exclusion of non-voting shares from equity benchmarks and expressed concerns that this would result in equity benchmarks that less clearly represent the overall opportunity set,” the New York-based company said.
(…) MSCI temporarily banned companies with “unequal voting structures” from being added to two broad benchmarks: the MSCI ACWI Investable Market Index and MSCI US Investable Market 2500 Index. Current members won’t be bumped from the indexes, however.
Japanese corporate culture is being blamed for the mistakes. Economists Naoshi Ikeda, Kotaro Inoue and Sho Watanabe of the Tokyo Institute of Technology recently set out to test the « quiet-life hypothesis, » which is, as Bloomberg describes, « the idea that without shareholder pressure, managers will tend to avoid big decisions and content themselves with managing stable corporate empires, letting their companies stagnate. »
The researchers found that there’s a lot of this « quiet-life » business activity going on in Japan. Cross-shareholding (Keiretsu), where corporations own each other’s stock is rife, and this means companies are reluctant to challenge each other. The researchers found that at companies with a considerable level of cross-ownership, R&D spending and growth CapEx is relatively low compared to the rest of the market.
But progress is being made. Three and a half years after the government introduced a stewardship code for local institutional investors and more than two years since the launch of a governance code for listed Japanese companies, listed companies are moving in the right direction. Dividend payouts have reached a record, and there has been a quadrupling of firms with two or more independent directors on their boards over the past four years. There has also been an increase in of “constructive,” or friendly, activists (referred to as engagement funds rather than activist funds), which aim to tackle corporate governance issues, but with an explicitly low-key, humble approach.
Intéressant article offert par les professeurs Hanne Birkmose et Florian Möslein « Mapping Shareholders’ Duties » sur l’Oxford Business Law Blog (6 janvier 2017). Cet article revient sur la riche thématique des devoirs des actionnaires !
Recent developments in European company law and capital market law have heralded a break with the traditional perception in company law that shareholders have no duties when they invest in companies. Instead, they are increasingly subjected to various duties. As part of a research project on ‘Shareholders’ duties’, we map these shareholders’ duties in order to provide an overview of current and prospective duties. This mapping shows a great variety as well as variance of shareholders’ duties.
The mapping of shareholders’ duties shows that shareholders’ duties are not a rare and exotic phenomenon in European company and capital market law. On a closer look, there are indeed many examples, and they form fully integrated parts of the legal system instead of being rate exceptions.