Monthly Archives: August 2016

Tips to oppose bill regulating proxy advisers

Council of Institutional Investors warns HR5311 would weaken governance in US public companies to the detriment of investors

Pension funds and other major institutional investors are fighting proposed legislation that they fear may severely restrict the ability of proxy advisers to fulfill their roles in the proxy voting process. The bill, HR5311, was introduced on May 24 and began the process of being amended by the House Committee on Financial Services on June 16.

If the bill, commonly known as the Corporate Governance Reform and Transparency Act of 2016, gets passed into law, it would require proxy advisory services to submit to a strict registration process with the SEC that would entail filing an application describing its methodologies for developing proxy voting recommendations, any potential or actual conflicts of interest related to the proxy adviser’s ownership structure and whether or not it has a code of ethics, as well as adequate financial and managerial resources to be able to consistently provide proxy advice based on accurate information. The bill would grant the SEC the authority to suspend or revoke a proxy adviser’s registration if the SEC decides this information hasn’t been provided to its satisfaction.

The proposed bill is the most recent expression of allegations that members of the US Chamber of Commerce and other business advocacy groups have made about the extent of influence proxy advisory firms may have on institutional investors voting their proxies. These allegations have escalated in recent years as investors have gained an advisory vote on companies’ executive compensation plans and as shareholder activism in general has grown.

In a letter of opposition sent to the House Committee, the Council of Institutional Investors (CII) voices concern that tighter regulation of proxy advisers would hurt investors and that ‘the bill could weaken public company corporate governance in the US, lessen the fiduciary obligation of proxy advisers to investor clients, and reorient any surviving proxy advisers to serve companies rather than investors.’

Timothy Smith, director of ESG shareholder engagement at Walden Asset Management in Boston, says his firm isn’t arguing that proxy advisory services don’t need some updating or checks and balances. ‘But if you read this bill, it [is clear it’s] hugely prescriptive, micromanaging to the extreme,’ he explains. ‘It would really block the work proxy advisory services are doing.’

The Society for Corporate Governance (formerly the Society of Corporate Secretaries and Governance Professionals) publicly supports HR5311, which has raised concern among some investment firms. In addition to sending its own letter to the House Committee on Financial Services, as numerous pension funds have done, Walden sent a letter to the society, thinking it important that it hear from investors that regularly engage with corporate secretaries.

Most corporate secretaries are well-enough informed about how the proxy process works to ‘know full well that ISS or Glass Lewis don’t commandeer the votes of their clients,’ Smith says. Walden’s appeal to the society is partly to make sure its leaders are aware ‘they’re working with folks [such as the Chamber of Commerce] who have a much larger campaign in mind’, which is to counter the efforts of major investors pushing to vote proxies not only on the basis of financial performance metrics but also on projected social and environmental impacts of business decisions, Smith explains.

The Society for Corporate Governance didn’t respond to a request for comments in time for inclusion in this article.

At the heart of the long-standing tension between issuers and proxy advisers is resentment among issuers that proxy advisers too often don’t agree with their executive pay plans and side with activist investors more often than with incumbent boards and management in proxy contests.

Francis Byrd, founder and CEO of Byrd Governance Advisory, believes proxy advisers ‘have been trying to respond to issuer concerns about actual mistakes and the need for corrections in their analysis.’ He also rejects the allegations of undue influence that proxy advisers have on voting results, citing increased efforts in recent years by investors to form their own governance teams and take proxy voting more seriously.

What is the US proxy season

unduhan-27Results from the first part of the 2016 proxy season and overall corporate governance trends continue to point to the need for proactive board-shareholder engagement,’ state the authors ofthe latest ProxyPulse report from Broadridge and PwC.

Summarizing the voting trends of 1,881 US public company meetings held between January 1, 2016 and May 15, 2016, the study finds that more than 30 shareholder proposals for proxy access – one of the hot governance topics carried over from 2015 – came to a vote during the first part of 2016.

‘Almost 70 percent of the companies targeted this year by the Boardroom Accountability Project reached agreement to adopt proxy access bylaws and avoid a shareholder vote,’ write the authors, while noting that more than half of the proxy access proposals of 2016 have failed to achieve majority support.

On another key issue, ProxyPulse finds that of the 1,085 say-on-pay proposals so far this season, ‘just over 3 percent failed to achieve majority shareholder support.’ At micro-cap companies, support dropped 10 percentage points, while at small caps there was a slight decrease in shareholder support, from 89 percent on average during the first part of 2015’s proxy season to 87 percent on average so far this year.

The final area examined in the mid-season report is director elections, with overall shareholder support falling from the same period last year: from January to May 2016, 151 directors at 64 different firms failed to achieve majority shareholder support – up from 126 directors for the same period last year.

Some companies appear to be failing to gain support in consecutive years. When it comes to director elections, ‘almost half of the companies that had at least one director fail to gain majority support last year also had a director fail this year.’

The same trend is seen in say on pay, where ‘43 percent of companies that failed to achieve the 70 percent support threshold in 2015 also failed to hit 70 percent this season,’ states the report.

Satis or Toran Proxy

Toran Proxy is a commercial alternative to Satis offering professional support as well as a web UI to manage everything and a better integration with Composer. It also provides proxying/mirroring for git repos and package zip files which makes installs faster and independent from third party systems.

Toran’s revenue is also used to pay for Composer and Packagist development and hosting so using it is a good way to support open source financially. You can find more information about how to set it up and use it on theToran Proxy website.

Satis#

Satis on the other hand is open source but only a static composer repository generator. It is a bit like an ultra-lightweight, static file-based version of packagist and can be used to host the metadata of your company’s private packages, or your own. You can get it from GitHub or install via CLI: php composer.phar create-project composer/satis --stability=dev --keep-vcs.

Setup#

For example let’s assume you have a few packages you want to reuse across your company but don’t really want to open-source. You would first define a Satis configuration: a json file with an arbitrary name that lists your curated repositories.

Here is an example configuration, you see that it holds a few VCS repositories, but those could be any types ofrepositories. Then it uses "require-all": true which selects all versions of all packages in the repositories you defined.

The default file Satis looks for is satis.json in the root of the repository.

{
    "name": "My Repository",
    "homepage": "http://packages.example.org",
    "repositories": [
        { "type": "vcs", "url": "https://github.com/mycompany/privaterepo" },
        { "type": "vcs", "url": "http://svn.example.org/private/repo" },
        { "type": "vcs", "url": "https://github.com/mycompany/privaterepo2" }
    ],
    "require-all": true
}

If you want to cherry pick which packages you want, you can list all the packages you want to have in your satis repository inside the classic composer require key, using a "*" constraint to make sure all versions are selected, or another constraint if you want really specific versions.

{
    "repositories": [
        { "type": "vcs", "url": "https://github.com/mycompany/privaterepo" },
        { "type": "vcs", "url": "http://svn.example.org/private/repo" },
        { "type": "vcs", "url": "https://github.com/mycompany/privaterepo2" }
    ],
    "require": {
        "company/package": "*",
        "company/package2": "*",
        "company/package3": "2.0.0"
    }
}

Once you’ve done this, you just run php bin/satis build <configuration file> <build dir>. For example php bin/satis build satis.json web/ would read the satis.json file and build a static repository inside the web/ directory.

When you ironed out that process, what you would typically do is run this command as a cron job on a server. It would then update all your package info much like Packagist does.

Note that if your private packages are hosted on GitHub, your server should have an ssh key that gives it access to those packages, and then you should add the --no-interaction (or -n) flag to the command to make sure it falls back to ssh key authentication instead of prompting for a password. This is also a good trick for continuous integration servers.

Set up a virtual-host that points to that web/ directory, let’s say it is packages.example.org. Alternatively, with PHP >= 5.4.0, you can use the built-in CLI server php -S localhost:port -t satis-output-dir/ for a temporary solution.

Partial Updates#

You can tell Satis to selectively update only particular packages or process only a repository with a given URL. This cuts down the time it takes to rebuild the package.json file and is helpful if you use (custom) webhooks to trigger rebuilds whenever code is pushed into one of your repositories.

To rebuild only particular packages, pass the package names on the command line like so:

php bin/satis build satis.json web/ this/package that/other-package

Note that this will still need to pull and scan all of your VCS repositories because any VCS repository might contain (on any branch) one of the selected packages.

How to take care the proxy

The facts of the case were undeniably tragic. Ms. Cruzan was in an automobile accident some seven-and-a half years ago. Since that time, she has been lying in a Missouri hospital in a “persistent vegetative state,” having lost her upper brain function, legally alive but permanently unconscious. However, Ms. Cruzan is not terminally ill; she could continue to live for many years in her vegetative state so long as she receives adequate nutrition and hydration. Ms. Cruzan’s parents asserted that their daughter would never wish to be maintained in such a state, and they asked the court to compel the hospital to “pull the plug” on Ms. Cruzan’s feeding tubes. By a vote of 5-4, however, the Supreme Court denied the parents’ request, and upheld the State of Missouri’s right to continue providing life-sustaining nutrition and hydration to Ms. Cruzan.[1]

Cruzan may have been the first case of its kind to reach the U.S. Supreme Court, but it is illustrative of the types of agonizing issues that arise so frequently in this era of rapid advances in medical technology. Those advances have enabled doctors to preserve and prolong many lives. At the same time, they have created a painful question that confronts countless individuals and their families: Are there any limits to the resources and efforts that should be devoted to the maintenance of a person whose quality of life is severely diminished, whose chances of recovery are slim or virtually nil, whose continued maintenance is exacting a severe economic and emotional cost? Where, if anywhere, is the line to be drawn?

The question is one that is faced not only by growing numbers of individuals and families, but also by society as a whole as it struggles to develop public policy in an area of extreme moral complexity.

Some in the “pro-life” community advocate an uncompromising public commitment to the preservation of human life under virtually all circumstances, no matter what the costs, no matter what the medical prognosis, no matter what the wishes of the family or even the individual patient. A growing number of others, in contrast, advocate the “right to die with dignity” — a policy that would allow patients and their families to decide, at least at some point, that the patient’s quality of life was so severely diminished as to justify the withholding or termination of medical life-support.

Although most proponents of the “right to die” position would hasten to disavow any support of suicide or of “euthanasia” (mercy killing), those concepts are inevitable outgrowths of the “right to die” philosophy and are already beginning to emerge from the shadows of the “death with dignity” movement. Laws have been proposed in a number of jurisdictions that would authorize physicians to assist patients who wish to commit suicide. One senses that stories like the one recently reported about Dr. Jack Kevorkian, a pro-euthanasia physician who had supplied a woman suffering from Alzheimer’s Disease with a “do-it-yourself” suicide kit, which she promptly used to take her life, will soon fail even to raise eyebrows among most people.

For yet others, dying is more than merely a matter of right; it rises to the level of an obligation. In 1984, for example, Colorado Governor Richard Lamm told a group of attorneys that terminally ill seniors have “a duty to die and get out of the way with all of our machines and artificial hearts and everything else like that and let the other society, our kids, build a reasonable life.” This attitude is reflected in health care rationing plans like the one recently developed in Oregon, which would deny Medicaid patients the right to receive certain types of medical services that are not deemed “cost-effective.” Thus, in determining whether any given life-sustaining measure makes medical sense, the key consideration is rapidly turning into one of dollars and cents.

With these developments taking place all around us, what is to be the attitude of the Torah community?

  • The Primacy of Halachah

Halachah, the law of Torah, encompasses every facet of human life. It also encompasses every facet of human death. There are halachos that teach us how a person’s remains are to be buried; under what circumstances, if any, a decedent’s body may be autopsied or dissected; whether it is permissible, or perhaps even a mitzvah, to donate body organs for purposes of transplantation into needy others.

So too does halachah govern the many issues that may arise in near-death situations: the types of medical circumstances, if any, that may justify the withholding or termination of various forms of medical care; the permissibility, or non-permissibility, of undergoing experimental treatment that could shorten life if it does not cure the disease; the extent, if any, to which an individual’s personal preferences with respect to medical care are relevant halachic considerations in determining the course of his treatment; the special laws that apply when a person reaches the stage of gesisah (in the throes of death), as well as the means by which gesisah is determined; the criteria by which to determine a person’s death.

Obviously, to state the self-evident axiom that halachah provides answers to all of these questions is by no means to state that there is always definitive halachic consensus as to what those answers are. Indeed, with respect to certain especially complex matters, the rabbinic responsa and other halachic literature reveal a considerable disparity among a number of contemporary poskim (halachic decisors). Moreover, the enormous technological and physiological complexity involved in many of these she’eilos(questions of Jewish law), as well as the high stakes, may result in a reluctance on the part of certain rabbanim to render halachic rulings in specific cases.

For the believing Jew, though, the bottom line is that the resolution of such issues must come through the halachic system, not through personal predilection as molded by contemporary culture. There are inevitably bound to be disparities between halachah and the mores of the time; the underlying philosophies are in fundamental conflict. As Rabbi J. David Bleich has written:

Man does not possess absolute title to his life or his body. He is charged with preserving, dignifying and hallowing that life. He is obliged to seek food and sustenance in order to safeguard the life he has been granted; when falling victim to illness or disease he is obliged to seek a cure in order to sustain life. The category of pikuach nefesh (preservation of life) extends to human life of every description and classification including the feeble-minded, the mentally deranged and yes, even a person in a so-called vegetative state. Shabbos laws and the like are suspended on behalf of such persons even though there maybe no chance for them ever to serve either G–d or fellow man. The mitzvah of saving a life is neither enhanced nor diminished by virtue of the quality of the life preserved.”[2]

Thus, “death with dignity,” the rallying cry of the modern day euthanasia movement, clearly does not find its roots in the law or values of Torah. Elderly persons who speak of their desire to die rather than become a financial or emotional “burden on the children” may have the most noble of intentions, but nobility of intention is not the yardstick by which Jews measure conformity with Hashem’s will. Those who champion only the quality of human life as the overriding value in health care decisions disregard the longstanding Jewish emphasis on the sanctity of human life, even in its most diminished qualitative form.

In sum, the complexity of the halachic issues, the diversity of views among rabbinic authorities with respect to certain she’eilos, the relative difficulty of finding rabbanimprepared to offer halachic guidance — none of these considerations detracts from the fundamental fact that for the Jew, the framework of analysis and decision on these issues must be the halachah.

  • Who Will Ask the Questions?
    Who Will Make the Decisions?

In ordinary circumstances, when a person has a she’eilah, he will pose it to the halachic authority whose guidance he personally accepts as binding — the Rav of his shul, hisrebbe, his rosh yeshivah, someone recognized as a halachic decisor for all of Klal Yisrael — whomever. Yet that is obviously impossible with respect to the many medical and post-mortem issues that may arise when the person about whom the she’eilah is being asked is incapable of posing the question himself.

One would hope that the she’eilah under those circumstances would be posed by those who will be making decisions on the individual’s behalf — in most cases, the members of his family — and that it would be posed to the very same halachic authority to whom the individual himself would have turned were he capable of doing so.

But not always can it be so. Some people do not have family members with whom they retain contact or upon whom they can rely to contact their morei hora’ah (halachic decisors) in times of emergency. And, even for those who do, not always will the she’eilos arise under circumstances where those family members will be available to contact the individual’s halachic authority. When, for example, a person is involved in an accident far from home, emergency decisions will be made for him by doctors and nurses who may not even know that he is Jewish, let alone who his relatives are or who his rabbi is. The likelihood is all too great in such situations that medical procedures will be performed, or withheld, in ways that constitute a violation of halachah.

The problem arises even more frequently in the context of post-mortem procedures. Many horror stories have come to light involving autopsies, post-mortem procedures and non-halachic burials of Jewish decedents who have passed away under circumstances where nobody was available to ensure that halachah would be followed after the person’s death.