Here's a Shareholder Issue That's Shaking Some Companies

When you buy a stock, you've taken a tiny ownership stake in a company -- in theory, anyway. Generally speaking, you're not encouraged to think like an owner, much less given any voice to act like one. The times may be changing though. Proxy access, an important topic in shareholder rights, has been coming to the fore and touching companies as disparate as Whole Foods Market (WFM) and Monsanto (MON).

Proxy access gives shareholders the right to nominate a few of their own directors to their companies' boards. As strongly opposed as many business interests are, that's it: It's simply the right to nominate candidates, who would still be subject to an overall shareholder vote.

As it stands now, most directors are nominated by the companies themselves, and companies and their lobbyists have worked hard to keep it that way. When one thinks about all the problems that can be caused by managements who care only for their own self-interest, often enabled by entrenched, complacent boards, you can see why there are some logic problems with that policy.

A situation at Whole Foods Market ignited fresh controversy about proxy access a few short months ago -- and as the topic gained momentum, a few big companies have been making changes in favor of this shareholder-friendly policy.

Giving shareholders the right to vote
Whole Foods Market had moved to exclude a shareholder proposal from James McRitchie on the company's proxy ballot this year. McRitchie had proposed that a group of up to 20 shareholders owning 3% of the company's shares for a three-year period should have the right to nominate their own director candidates.

Whole Foods' argument was that the proposal conflicted with its own on the same topic, which had far more onerous requirements. The company's proposal originally called for a single shareholder to hold a whopping 9% of the company's shares for five years before gaining the right to nominate potential candidates.

Even if you feel completely comfortable with the quality of Whole Foods' leadership (and personally, I do), that policy and the precedent it was setting for companies overall was the rub. Just for starters, when it looked as if the Securities & Exchange Commission would allow the exclusion on that grounds, about two dozen other companies began scrambling to use the same tact to keep that type of shareholder proposal off their ballots.

Then, the SEC stepped aside, retracting its previous stand that it was OK to exclude shareholder proposals due to such proposal "conflicts." By having no opinion, the SEC basically put the proposals back on the table and back in the proxy statements.

On Feb. 13, Whole Foods released an SEC filing announcing the postponement of its annual meeting as it considers its alternatives given the matter.

Slam dance
It's been an interesting several months since, as shareholders, business interests, and shareholder advocates and advisers chimed in on the topic.

Glass Lewis, which advises shareholders on how to vote their proxies, has taken the stand that significant, long-term shareholders should have the right to nominate their own directors, as long as reasonable thresholds of ownership and time frames are in place. Note that it still says it advises on how to vote on specific proposals on a case-by-case basis.

ISS, another proxy adviser, has taken it a step further and says that it will generally support voting for such proposals.

According to USA Today, in January, Anne Simpson of California Public Employees' Retirement System, or CalPERS, -- a pension fund worth $296.3 billion -- said of the proxy access situation, "This is not going to be a merry dance... We find this very important for board accountability. And if boards do not respond constructively on this, we'll take our votes to the boardroom."

The good news is a few megamajor companies are responding already, and could inspire others to act.

Citigroup, Prudential, and General Electric have all recently announced that they will allow shareholders owning 3% of shares for three years to nominate directors. They're wise to take voluntary action as opposed to waiting for a shareholder proposal and vote to force the issue.

Meanwhile, if you were wondering how Monsanto fits into the fray, 53% of its shareholders voted in favor of a shareholder's proxy access proposal at its annual meeting several months ago. Monsanto responded that "the board will take into consideration the shareowner vote and the thoughtful shareowner discussion we've had regarding the evolving role of proxy access ."

What about you?
If you own individual stocks, you may have the chance to vote on such a proposal yourself. New York City Comptroller Scott Stringer started filing proxy access proposals at 75 companies last fall, and plenty of other corporate governance advocates have likely filed their own proposals that could appear on the proxy statements you receive this year.

Of course each of us should vote our ballots in any way we see fit, keeping the long-term health of our companies in mind. However, I think there are some important points to ponder.

Most managements will argue that they don't want shareholders to have this right because they don't want short-term investors to push for things that won't be in the interest of the company and shareholders.

I'd be the first to admit that our marketplace is threatened by short-term investors and traders; the myopic, quarter-by-quarter profit perspective is often damaging to our companies and to the marketplace at large. On the other hand, I think many companies' managements use shareholders as a scapegoat for all that goes wrong on their watches. The truth is, most of the time shareholders don't really have much of a say or influence at all, other than selling their shares, and that's just how many managements want it.

The requirement that shareholders must hold 3% of shares for three years before they can make this move blocks out fly-by-night investors who would condone unwise strategies to turn a quick buck. Furthermore, a 3% stake still can represent one heck of a sizable chunk of change at many companies.

Meanwhile, sad as it is, a heck of a lot of investors have a hard time being patient and not trading for three months, much less three years, so I'd say that time frame shows a degree of commitment.

Even if some shareholders do nominate a few candidates, there's still the actual shareholder vote. Sometimes investors do crazy things, but I doubt many truly long-term shareholders who care about their returns would opt to shake up boards and push against management unless there's a really good reason.

Last but not least, I think it bears repeating that many a shareholder has been fleeced by companies that had shoddy, self-interested managements and complicit boards, and in many cases, shareholders had to stand idly by with no power or voice.

Checks and balances
If things are going downhill at a public company, it makes perfect sense that a rational solution would be to nominate a few directors who are actually willing to push back. Even shareholders having the ability to do so might keep some managements in check and head off some problems at the pass.

Giving shareholders rights to make moves like this may be one step to help us avoid some pretty terrible situations at public companies -- for our own portfolio returns and even for society at large. Poorly run or, worse, failing companies often carry external costs that hurt quite a few stakeholders, hardly limited to shareholders.

And at the very least, it shows management respect for shareholders -- and that's a start.