また、この議論は、Sciabacucchi v. SalzbergやCyan Inc. v. Beaver County Employees Retirement Fundの影響もあるようで、複眼的に捉えると米国の法制度の特徴が明らかになって面白いように思えます。
via SEC, Jay Clayton, Cooley, Alison Frankel, Bernstein Litowitz Berger & Grossmann LLP, Allen & Overy, Cooley
Eugene F. Soltes, Suraj Srinivasan & Rajesh Vijayaraghavan, What Else Do Shareholders Want? Shareholder Proposals Contested by Firm Management
Shareholder proposals provide investors an opportunity to exercise their decision rights within a firm. However, not all proposals created by shareholders receive consideration. Managers can seek permission from the Securities and Exchange Commission (SEC) to exclude specific proposals from the proxy statement. From 2003-2013, we find that managers seek to exclude 40% of all proposals they receive, but the SEC does not permit exclusion in over a quarter of the cases. Of the proposals that managers seek to exclude but the SEC does not allow, 28% win shareholder support or the firm voluntarily implements prior to a vote. Our analysis of contested shareholder proposals suggests that managers often seek to avoid the implementation of legitimate shareholder interests.
Sarah C. Haan, Shareholder Proposal Settlements and the Private Ordering of Public Elections
… As a form of private electoral regulation, the proposal settlement mechanism raises issues of democratic transparency, participation, accountability, and enforcement. This Article challenges the characterization of proposal settlements as “voluntary” corporate self-regulation, provides a framework for understanding settlement-related agency costs, and shows how settlement subverts the traditional justifications for the shareholder proposal itself. Solutions that address the democratic and corporate governance problems of settlement largely overlap, suggesting a path forward.