September 17, 2018
The SEC’s Salvos Against Both “Informal” SEC Staff Guidance & Proxy Advisors
– Broc Romanek
Last Thursday, the SEC came out with two salvos against “informal” staff guidance. First, there was this statement from SEC Chair Jay Clayton reminding us that all Staff guidance is non-binding (ie. creates no enforceable legal rights or obligations for the SEC or other parties) because it hasn’t been subject to notice & comment under the Administrative Procedures Act. That statement noted that the SEC “will continue to review whether prior staff statements and staff documents should be modified, rescinded or supplemented in light of market or other developments.”
A few moments later, the Division of Investment Management issued this statement that – ahead of the upcoming “proxy plumbing” roundtable – it was withdrawing two no-action letters granted in 2004 to ISS and Egan-Jones Proxy Services.
Over on “TheCorporateCounsel.net Blog,” I have blogged extensively about what this means, both in Friday’s blog – and today’s blog. For example, I cover these topics in today’s blog:
1. What Does This Mean for the “Proxy Plumbing” Roundtable?
2. Any “Real World” Impact?
3. Withdrawal Didn’t Change the Law?
4. How Much Do Companies Rely on Proxy Advisors?
5. Do Courts Give Deference to SEC Staff Guidance?