The SEC adopted Guidance that discusses, among other matters, the ability of investment advisers to establish a variety of different voting arrangements with their clients and matters they should consider when they use the services of a proxy advisory firm.¹

The Guidance focuses on the proxy voting responsibilities of investment advisers under Rule 206(4)-6 under the Investment Advisers Act of 1940 (the Advisers Act), and Form N-1A, Form N-2, Form N-3, and Form N-CSR under the Investment Company Act of 1940. The Guidance was issued on August 21, 2019.

On the same day, the SEC issued an interpretation (the Interpretation) which confirms that proxy voting advice provided by proxy advisory firms generally constitutes a “solicitation” under the federal proxy rules and provides related guidance about the application of the proxy antifraud rule to proxy voting advice.²

The Guidance and the Interpretation issued by the SEC are not subject to notice and comment and will instead become effective upon publication in the Federal Register.

Summary of the Guidance

Investment advisers owe each of their clients a duty of care and loyalty with respect to services undertaken on the clients’ behalf, including proxy voting. Rule 206(4)-6 under the Advisers Act requires an investment adviser who exercises voting authority with respect to client securities to adopt and implement written policies and procedures that are reasonably designed to ensure that the investment adviser votes proxies in the best interest of its clients.³ The Guidance clarifies how an investment adviser’s fiduciary duty and Rule 206(4)-6 under the Advisers Act relate to an adviser’s proxy voting on behalf of clients, particularly if the investment adviser retains a proxy advisory firm, in the form of six Q&As, which we summarized below:⁴

1. How may an investment adviser and its client, in establishing their relationship, agree upon the scope of the investment adviser’s authority and responsibilities to vote proxies on behalf of that client?

   According to the Guidance, an investment adviser is not required to accept the authority to vote client securities, regardless of whether the client undertakes to vote the proxies itself. However, if an investment adviser does accept voting authority, the adviser may agree with its client, subject to full and fair disclosure and informed consent, on the scope of voting arrangements, including the types of matters that the adviser will exercise proxy voting authority. The Guidance provides the following non-exhaustive examples of possible voting arrangements where a client and its investment adviser may agree, subject to full and fair disclosure and informed consent:

   • The investment adviser should exercise voting authority pursuant to specific parameters designed to serve the client’s best interest.
   • The investment adviser would not exercise voting authority in circumstances where voting would impose costs on the client.
   • The investment adviser will focus voting resources only on particular types of proposals based on the client’s preferences.
   • The investment adviser would not exercise voting authority on certain types of matters where the cost of voting would be high, or the benefit to the client would be low.

2. What steps could an investment adviser that has assumed the authority to vote proxies on behalf of a client take to demonstrate that it is making voting determinations in a client’s best interest and in accordance with the investment adviser’s proxy voting policies and procedures?

   According to the Guidance, an investment adviser may, among others things, take the following steps:

   • Consider how its fiduciary duty and its obligations under Rule 206(4)-6 apply when it has multiple clients and whether voting all of its clients’ shares in accordance with a uniform voting policy would be in the best interest of each of its clients.
   • Consider whether certain types of matters may necessitate that the adviser conduct a more detailed analysis than what may be entailed by application of its general voting guidelines.
   • Consider reasonable measures to determine that it is casting votes on behalf of its clients consistently with its voting policies and procedures.
   • An investment adviser that retains a proxy advisory firm to provide voting recommendations or voting execution services should consider additional steps to evaluate whether the investment adviser’s voting determinations are consistent with its voting policies and procedures and in the client’s best interest before the votes are cast.
   • Review and document, no less frequently than annually, the adequacy of its voting policies and procedures to ensure that they have been formulated reasonably and implemented effectively.

3. What are some of the considerations that an investment adviser should take into account if it retains a proxy advisory firm to assist it in discharging its proxy voting duties?

   According to the Guidance, an investment adviser should consider, among other things, the following:

   • Whether the proxy advisory firm has the capacity and competency to adequately analyze the matters that the investment adviser is responsible for voting. In this regard, an investment adviser could consider, among other things, the adequacy and quality of the proxy advisory firm’s staffing, personnel, and/or technology.
   • Whether the proxy advisory firm has an effective process for seeking timely input from issuers and proxy advisory firm clients with respect to, for example, its proxy voting policies, methodologies, and peer group constructions, including for “say-on-pay” votes.
   • Whether the proxy advisory firm has adequately disclosed to the investment adviser its methodologies in formulating voting recommendations, such that the investment adviser can understand the factors underlying the proxy advisory firm’s voting recommendations.
   • The nature of any third-party information sources that the proxy advisory firm uses as a basis for its voting recommendations.
   • What steps it should take to develop a reasonable understanding of when and how the proxy advisory firm would expect to engage with issuers and third parties.

4. When retaining a proxy advisory firm for research or voting recommendations as an input to its voting determinations, what steps should an investment adviser consider taking when it becomes aware of potential factual errors, potential incompleteness, or potential methodological weaknesses in the proxy advisory firm’s analysis that may materially affect one or more of the investment adviser’s voting determinations.

   According to the Guidance, an investment adviser’s policies and procedures should be reasonably designed to ensure that its voting determinations are not based on materially inaccurate or incomplete information. An investment adviser should consider including in its policies and procedures a periodic review of the investment adviser’s ongoing use of the proxy advisory firm’s research or voting recommendations. In reviewing its use of a proxy advisory firm, an investment adviser should also consider the effectiveness of the proxy advisory firm’s policies and procedures for obtaining current and accurate information relevant to matters included in its research and on which it makes voting recommendations.

5. How can an investment adviser evaluate the services of a proxy advisory firm that it retains, including evaluating any material changes in services or operations by the proxy advisory firm?

   The Guidance suggests that an investment adviser adopt and implement policies and procedures that are reasonably designed to sufficiently evaluate the third party in order to ensure that the investment adviser casts votes in the best interest of its clients. For example, an investment adviser should consider policies and procedures to identify and evaluate a proxy advisory firm’s conflicts of interest that can arise on an ongoing basis. An investment adviser should also consider requiring the proxy advisory firm to update the investment adviser regarding business changes the investment adviser considers relevant. Further, an investment adviser should consider whether the proxy advisory firm appropriately updates its methodologies, guidelines, and voting recommendations on an ongoing basis, including in response to feedback from issuers and their shareholders.

6. If an investment adviser has assumed voting authority on behalf of a client, is it required to exercise every opportunity to vote a proxy for that client?

   According to the Guidance, an investment adviser is not required to do so in either of the following two situations:

   • An investment adviser and its client have agreed in advance to limit the conditions under which the investment adviser would exercise voting authority, as discussed above.
   • An investment adviser that has voting authority may refrain from voting a proxy on behalf of a client if it has determined that refraining is in the best interest of that client.

Summary of the Interpretation

The federal proxy rules apply to any solicitation for a proxy with respect to any security registered under Securities Exchange Act of 1934 (the Exchange Act) Section 12. Under Exchange Act Rule 14a-1(l), a solicitation includes, among other things, a “communication to security holders under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy,” and includes communications by a person seeking to influence the voting of proxies by shareholders, regardless of whether the person is seeking authorization to act as a proxy.

Similar to the Guidance, the Interpretation includes the following two Q&As, which we summarized below:⁵

1. Does proxy voting advice provided by a proxy advisory firm constitute a solicitation under the federal proxy rules?

   Consistent with the SEC’s broad definition of solicitation and case law construing solicitation, the SEC has observed that the breadth of the definition of “solicitation” may result in proxy advisory firms being subject to the proxy rules because they provide recommendations that are reasonably calculated to result in the procurement, withholding, or revocation of a proxy. In expressing this view, the Interpretation confirms that, as a general matter, the furnishing of proxy voting advice constitutes a “solicitation” within the meaning of Exchange Act Rule 14a-1. The SEC made the conclusion based on the following considerations:

   • With respect to the substance of the communications, the proxy voting advice generally describes the specific proposals that will be presented at the registrant’s upcoming meeting and presents a “vote recommendation” for each proposal that indicates how the client should vote.
   • With respect to the circumstances under which this voting advice is provided, proxy advisory firms market their expertise in researching and analyzing matters submitted to a shareholder vote for the purpose of assisting their clients in making voting decisions at shareholder meetings.
   • The fact that proxy advisory firms typically provide their recommendations shortly before a shareholder meeting further enhances the likelihood that the recommendations are designed to and will influence the final stages of the investment advisers’ decision-making process on voting determinations.
   • Even if the proxy advisory firm is providing recommendations based on its application of the client’s own tailored voting guidelines (i.e., not merely performing administrative or ministerial services), it is SEC’s view that such analysis and advice regarding a voting determination generally should be considered a solicitation.
   • The SEC views the services provided by proxy advisory firms as distinct from advice prompted by unsolicited inquiries from clients to their financial advisors or brokers, because rather than merely responding to client inquiries, the communication is invited by the proxy advisory firms themselves through the marketing of their expertise in researching and analyzing proxy issues for purposes of helping clients make proxy voting determinations.

2. Does Exchange Act Rule 14a-9 apply to proxy voting advice?

   The Interpretation does not affect the ability of proxy advisory firms to continue to rely on Rule 14a-2(b) exemptions from the federal proxy rules’ filing requirements. Notwithstanding the foregoing, solicitations remain subject to Exchange Act Rule 14a-9, which prohibits any solicitation from containing any false or misleading statement with respect to any material fact. In addition, such solicitation must not omit to state any material fact necessary in order to make the statements therein not false or misleading.

   According to the Interpretation, the provider of the proxy voting advice should consider whether, depending on the particular statement, it may need to disclose the following types of information in order to avoid a potential violation of Rule 14a-9:

   • An explanation of the methodology used to formulate its voting advice on a particular matter where the omission of such information would render the voting advice materially false or misleading.
   • If the proxy voting advice is based on information other than the registrant’s public disclosures, disclosure about these information sources.
   • If the third-party information differs from the public disclosures provided by the registrant, such differences are material, and the failure to disclose the differences would render the voting advice false or misleading, disclosure about the differences.
   • Disclosure about material conflicts of interest that arise in connection with providing the proxy voting advice in reasonably sufficient detail so that the client can assess the relevance of those conflicts.

[1] https://www.sec.gov/news/press-release/2019-158.

[2] Id.

[3] Rule 206(4)-6 of the Advisers Act.

[4] https://www.sec.gov/rules/interp/2019/ia-5325.pdf.

[5] https://www.sec.gov/rules/interp/2019/34-86721.pdf.