Proxy Cards and the Requirements of Clarity and Impartiality in Titling Proposals

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Lincoln Puffer* 

In the 2010 Proxy Plumbing Release, the Securities and Exchange Commission (SEC or the Commission) indicated concern with “the ability of issuers to communicate with shareholders.”[1] The Commission cited historically low retail investor participation in the proxy voting process and sought comments on ways to improve shareholder involvement.[2] As part of the comment process, the Commission expressed an interest in determining “whether improving the presentation of information on the proxy card . . . would have an effect on voting participation.”[3]

Under the proxy rules, the card submitted to shareholders must present information in a clear and impartial manner.[4] With respect to proposals submitted to shareholders, Rule 14a-4 specifically requires that the company “identify clearly and impartially each separate matter.”[5] The Commission has, however, provided only limited guidance on these requirements.  Moreover, the staff has not specifically applied the obligation of clarity and impartiality to the titles of proposals on the proxy card.[6]

This article is broken down into two sections. The first addresses the regulatory history of proxy card requirements. The second provides an empirical analysis of the proposals presented on the proxy cards and proxy statements of over 100 companies that made proxy solicitations in 2013, and an analysis of current practices in the disclosure of proposals.[7]

I. Regulatory History of the Proxy Card

A. Evolution of the Requirement of Clarity and Impartiality

The Commission adopted the first set of proxy regulations in 1935.[8] These regulations mostly contained rudimentary disclosure obligations applicable to proxy solicitations. They contemplated but did not specifically mandate the use of a proxy card.[9] Three years later, amendments to the rules more broadly required the disclosure of all “essential information” in a “proxy statement.”[10] The Commission also expressly regulated the content of the proxy card for the first time. Shareholders were to receive “some definite means” to indicate support or opposition for each proposal.[11] The manner of presentation also mattered. The contents of the card had to meet a requirement of “legibility.”[12]

In 1948, the Commission went further and more broadly required that a proxy card meet obligations of clarity and impartiality. Specifically, “each matter or group of related matters intended to be acted upon” was to be described “clearly and impartially.”[13] The change was designed to give shareholders a “fair and unimpeded opportunity to express their approval or disapproval.”[14] Other than a factual statement of opposition or support, management was not permitted to use the card to influence the outcome.[15] Management could not, therefore, include: 

[A]ny statement or device which advocate[d] any proposal, obscure[d] the presentation of any proposal, misl[ed] or confuse[d] the security holder, [brought] pressure to bear upon [the shareholder] in the exercise of his [or her] right of choice or [made] it mechanically more difficult . . . to vote one way rather than another.[16]

The Commission warned against “the use of arrows or any other visual device designed to direct the stockholders attention to the place on the proxy for voting one way and away from the place for voting the contrary.”[17] Rule 14a-4 also required that the proxy card indicate in bold face type whether a solicitation was made on behalf of management.[18]

The SEC amended Rule14a-4 on several other occasions, expanding upon the obligation of clarity and impartiality.[19] In the 1970s, the SEC addressed the election of directors. The proxy form was required to display the name of each person nominated to the board, thereby “provid[ing] shareholders with . . . readily accessible information.”[20] The proxy card also had to “clearly provide one of several designated methods” to “withhold authority”[21] from individual nominees.[22]

Amendments adopted in 1992 again improved the clarity of communication between stockholders and issuers by prohibiting the bundling of proposals.[23] The amendments eliminated the authority to present a “group of related matters” in a single proposal, and instead required issuers to “identify clearly and impartially each separate matter.[24] The approach allowed shareholders “to communicate to the board of directors their views on each of the matters put to a vote, and not be forced to approve or disapprove a package of items and thus approve matters they might not if presented independently.”[25]

The need for clarity and impartiality played a role in the shareholder access rule adopted in 2010.[26] The access rule allowed shareholders to submit nominees for inclusion in the company’s proxy statement.[27] Management was prohibited from giving shareholders the option to vote or abstain from issuer nominees as a group.[28] To do otherwise “would result in an advantage to the management nominees and would be inconsistent with an impartial approach.”[29] Although the company could determine the order of shareholder and issuer nominees, it was bound to “present the nominees in an impartial manner in accordance with Rule 14a-4.”[30]

Clarity and impartiality also influenced the approach taken by the Commission in permitting disclosure of proxy materials over the Internet.[31] Shareholders were to receive a notice of the availability of online proxy materials. Although the notice did not have to precisely mirror the format and content of the proxy card, the Commission required that issuers “clearly and impartially identify each separate matter intended to be acted on that will be considered at the meeting.[32]

B. Clarity and Impartiality Interpreted

The staff of the Commission has on a few occasions provided informal guidance on the impartiality requirement.[33] Visual devices cannot direct shareholders’ attention “to the place on the proxy for voting one way and away from the place for voting the contrary.”[34] On the other hand, columns were allowed. In Colorado National Bankshares, Inc., the company separated shareholder and management proposals into separate columns and included a recommendation over each row.[35] The staff originally objected, describing the practice as “electioneering.”[36] In a subsequent no action letter, however, the staff reversed course and indicated that it would not object to the company’s use of device.[37]

Using bold or colored fonts for management-sponsored matters will not qualify as impartial. In Shoen v. AMERICO, plaintiff-shareholder Paul Shoen submitted several proposals and nominated a competing slate of directors to be considered at Americo’s annual meeting.[38] Management for Americo used green ink to highlight its recommendations on the proxy card and used red to highlight Shoen’s views.[39] The top of the proxy card also included a diagram indicating how each item should be voted.[40] The court ruled that these visual devices used together resulted in an “egregious” violation of Rule 14a-4.[41] 

II. Empirical Study of Clarity and Impartiality of Proxy Card Proposals

Rule 14a-4’s regulatory history demonstrates that the Commission intended the proxy card to be both clear and impartial. Current practices, however, indicate that, with respect to titles used in the proxy card, these standards may not be fully met. 

In connection with this article, data was analyzed from proxy statements and proxy cards distributed by the top 100 of the Fortune 500 companies in connection with the annual meeting of shareholders in 2013.[42] The data was supplemented with searches of EDGAR for proxy cards filed in 2013 by companies outside the Fortune 500 list.[43]  The analysis focused on the title of proposals in the proxy statement and the description of the proposals on the proxy card.  The proposals ran the gamut from ratification of a company’s auditors to repeal of classified boards to plans to lower greenhouse gas emissions.

A. Clarity

The obligation of clarity in connection with the proxy card suggests the need for a description of proposals that are not excessively vague[44] but provide shareholders with at least a modest understanding of the matter under consideration.[45] Most companies meet this requirement either by including on the proxy card an expansive title that contains enough information to alert shareholders as to the content[46] or by providing a short narrative description of the matter.[47]

A proposal in the Wells Fargo’s proxy card, for example, included the title: “Stockholder proposal to review and report on internal controls over the Company’s mortgage servicing and foreclosure practices.”[48] This title alerted shareholders to the main purpose of the proposal and captured the description of the matter as presented in the proxy statement. So did the title from a proxy card submitted by Hess Corporation: “Stockholder proposal submitted by Elliott Associates, L.P. and Elliott International, L.P. recommending that the company repeal any provision or amendment of the by-laws adopted without stockholder approval after February 2, 2011 and prior to the annual meeting.[49]

Not all companies, however, took such an expansive approach. Others provided only a vague sense of the matter at issue.[50] They sometimes did this by transferring an obscure title of a proposal directly from the proxy statement to the proxy card.[51] For example, one company described a proposal as “Report on Natural Gas Production.”[52] The full proposal, however, requested that the Board report annually, “above and beyond regulatory requirements,” on the environmental impacts from the “company’s natural gas extraction operations associated with shale formations.”[53]

In other cases, companies abridged the title used in the proxy statement. For example, one company included a proposal that addressed an amendment to a stock incentive plan.[54] In the proxy statement, the matter was titled: “Approval of the Amendment of the Amended [Company] 2010 Stock Incentive Plan to Increase the Number of Shares Authorized to be Issued Under the Plan.”[55] The proxy card, however, cut the twenty-six-word title almost in half and eliminated any reference to an increase in the number of shares.[56]

Still, other companies failed to provide any substantive title at all. One company simply listed a proposal as “[t]he shareholder proposal set forth in the accompanying proxy statement.”[57] Another gave shareholders the opportunity to vote for, against, or abstain from “a shareholder proposal” but only if “properly presented.”[58] Another simply titled the matter “shareholder proposal.”[59]

In some cases, concern over clarity is systematic. One group of proposals that consistently lacked meaningful clarity were those seeking ratification of the company’s independent registered public accountants. Out of the eighty-eight Fortune 100 companies that included such a proposal, twenty-three did not list the name of the accountant on the proxy card.

Compensation matters, likewise, often relied on vague titles, particularly with respect to “say on pay” proposals. Companies commonly requested an “advisory vote on executive compensation.”[60] Rule 14a-21, however, required an advisory vote on a “separate resolution . . . to approve the compensation of its named executive officers, as disclosed pursuant to Item 402 of Regulation S-K.”[61] The model resolution in Rule 14a-21 further provided that approval included “the Compensation Discussion and Analysis, compensation tables and narrative discussion.”[62] None of this was clear from the title of the say on pay proposal used by most companies in their proxy card. Nor could shareholders tell from the title whether they were voting on an amount or a type of compensation.[63]

B. Impartiality

In addition to clarity, Rule 14a-4(a) also requires that each matter on the proxy card be identified “impartially.” Impartiality presumably mandates the presentation of proposals in a neutral fashion that avoid putting pressure on shareholders to vote a certain way.[64] 

Visual devices can raise difficult interpretive issues under the requirement. The staff has specified certain prohibited practices. On the other hand, the devices will not always violate the requirement and, on at least one occasion, the staff has expressly approved their use.[65] The separation between devices that constitute a “simple statement” and those that constitute electioneering, therefore, is far from clear.

In the data, a small number of companies employed them. They invariably were discrete markings above columns indicating the recommendations of management. These included small arrows[66] and the insertion of the letter “i” over the relevant columns.[67] 

Similarly, the Commission has never expressly applied the impartiality requirement to differences in language used to describe management and shareholder matters. The data shows that companies sometimes varied the language.[68] One issuer, for example, asked shareholders to “approve” or “ratify” management recommended proposals but only to “consider” proposals submitted by shareholders.[69] Similarly, some companies qualified all shareholder proposals with the phrase “if properly presented” but not those of management.[70]

Finally, the Commission expressly permitted issuers to include a “simple statement of the fact that management” favored or opposed “any matter to be acted upon.”[71] The guidance has been in place since at least the 1940s and survived the explicit addition to the impartiality requirement in Rule 14a-4.[72] Of the proxy cards examined, most, although not all, noted management’s recommendations, usually in the form of a narrative sentence.

III. Analysis

The regulatory history of Rule 14a-4(a) demonstrates that the proxy card, unlike the proxy statement, is intended to be a document that is both legible and devoid of electioneering. These obligations are embodied in the requirement that matters be set out in a clear and impartial fashion. As this article illustrates, the primary concern is not impartiality but clarity. In at least some instances, shareholders receive a proxy card with titles that do not provide significant insight into the subject matter under consideration. To the extent shareholders execute a proxy without cross-referencing the proxy statement, they may be voting in a highly uninformed manner.

A solution to this concern does not require an amendment to Rule 14a-4. The history of this rule embodies an obligation of clarity and impartiality. Staff guidance in this area would likely be enough. The staff could do so by providing an informal statement indicating the requirement of clarity and impartiality applied to titles on the proxy card.[73]

The advice could also take a “Twitter” approach to titles. Shareholders submitting proposals should be encouraged to include titles but limit the number of words. These titles could then be transferred verbatim to the proxy card. This would allow shareholders submitting proposals to craft their own description, removing the matter from management’s discretion.

Finally, the Commission should reconsider the practice of allowing issuers to include recommendations on the proxy card. First, this is arguably inconsistent with an impartiality requirement and allows for a modest amount of electioneering to occur on the card. Second, pressure is building for a universal proxy ballot.[74] The ability to include management recommendations is arguably inconsistent with this approach.

In theory, therefore, the staff could issue an informal opinion that the practice is no longer allowed. Because it has been in use for more than fifty years, however, the Commission will likely need to address the concern in a more formal manner, perhaps through an amendment to Rule 14a-4 to prohibit the practice.[75]


       [1].     Concept Release on the U.S. Proxy System, Exchange Act Release No. 62495, 2010 WL 2779423, at *28(July 14, 2010). The Commission stated, “we view significant lack of participation by retail investors in proxy voting as a source of concern, even in companies in which retail share ownership represents a relatively small portion of total voting power.” Id. at *34.

       [2].     Id.

       [3].     Id.

       [4].     17 C.F.R. § 240.14a-4(a) (2013).

       [5].     17 C.F.R. § 240.14a-4(a).  See also Adoption of Amendments to Proxy Rules, Exchange Act Release No. 4185, 1948 WL 28695 (Nov. 5, 1948). 

       [6].     See infra Part II.

       [7].     A spreadsheet containing my analysis is available at http://www.law.du.edu/documents/corporate-governance/empirical/Fortune_100_DEF_14As_2013.xlsx.

       [8].     Exchange Act Release No. 378, 1935 WL 29270 (Sept. 24, 1935).

       [9].     The release contemplated the use of, but did not expressly regulate, proxy cards. Instead, the release merely provided that required disclosure could be included “either in the form of proxy, consent or authorization, in a written or printed notice of meeting or other statement” or the “annual or other report which is concurrently or has previously been sent to stockholders of record as of a given date.” Id. at *2. The form of proxy had to be filed with the Commission. See id. at Rule LA5 (“A copy of the form of proxy, consent or authorization and of the information required by Rule LA3 to be submitted therewith shall be filed with each exchange on which the security in question is listed and with the Commission, not later than the first date of solicitation of such proxy.”).

     [10].     Exchange Act Release No. 1823, 1938 WL 33169, at *1 (Aug. 11, 1938). The SEC designated these rules in the 1938 amendments as “Regulation X-14.” Id. (“Proxy statements . . . must set forth (a) the identity of persons soliciting the proxy, (b) the nature of the matters to be voted on under the proxy, (c) power of the security holder to revoke his proxy and the rights of dissenting stockholders, and (d) the expenses of the solicitation including all compensation paid to solicitors. In addition, certain financial data are sometimes required to be included.”).

     [11].     Id. (“In other words, the proxy must provide some definite means whereby the security holder may indicate how he desires his vote to be cast on a given proposition and whereby the authority of the holders of the proxy will be limited accordingly. Of course, if the security holder wishes to confer full discretion upon the persons soliciting his proxy he may do so.”).

     [12].     Specifically, Rule X-14A-3, titled “Legibility of soliciting material” required that the “form of the proxy . . . shall be set in type not smaller than 10-point roman, at least 2-point leaded.” Id. at *4. In 1942, the Commission would add the requirement of “bold face type.” Securities Act Release No. 2887, Exchange Act Release No. 3347, 1942 WL 34864, at *8 (Dec. 18, 1942).

     [13].     Exchange Act Release No. 4185, supra note 5, at *2 (“The form of proxy (1) shall indicate in bold face type whether or not the proxy is solicited on behalf of the management, and (2) shall identify clearly and impartially each matter or group of related matters intended to be acted upon, whether proposed by the management or by security holders.”).

     [14].     Robert K. McConnaughey, Comm’r, SEC, Address before the American Society of Corporate Secretaries, Inc., at 2 (Nov. 10, 1948), available at http://www.sec.gov/news/speech/1948/111048mcconnaughey.pdf (“[T]hese rules are intended to provide—machinery whereby stockholders who do not directly participate in the corporation’s management can know what has been done and what is proposed to be done by the company that is using their money, and can have a fair and unimpeded opportunity to express their approval or disapproval.”).

     [15].     Exchange Act Release No. 4185, supra note 5, at *1 (management could only state a “simple statement of the fact” that it favored or opposed a proposal).

     [16].     Id. (“[I]n view of the requirement of the rule that matters to be acted upon are to be set forth clearly and impartially, the Commission will regard as contrary to the rule any statement or device which advocates any proposal, obscures the presentation of any proposal, misleads or confuses the security holder, brings pressure to bear upon him in the exercise of his right of choice or makes it mechanically more difficult for him to vote one way rather than another.”).

     [17].     Id.

     [18].     Id.

     [19].     Exchange Act Release No. 7775, 1965 WL 89315 (Dec. 22, 1965); Exchange Act Release No. 7481, 1964 WL 66496 (Dec. 7, 1964) (requiring the inclusion of an option to “withhold authority to vote” in board of director elections in order to allow shareholders to vote on proposals but without giving management the authority to use the proxies to vote for nominees); Exchange Act Release No. 4775, 1952 WL 5254 (Dec. 11, 1952) (prohibiting the solicitation of undated or postdated proxies, and requiring the inclusion of a space for dating the form of proxy).

     [20].     Shareholder Communications, Shareholder Participation in the Corporate Electoral Process and Corporate Governance Generally, Exchange Act Release No. 16356, 1979 WL 173198, at *5 (Nov. 21, 1979).

     [21].     Id. In the plurality voting system directors are elected by who receives the most votes, but a majority vote is not required. Therefore, against votes have questionable legal effect.

     [22].     Id. at 4–5. Previously, shareholders could only withhold authority to vote in an election, not for individual nominees. Exchange Act Release No. 7775, 1965 WL 89315, at *5 (Dec. 22, 1965). Allowing shareholders to withhold authority to vote for individuals in an election provided more meaningful participation through specificity. These amendments also clarified the source of a proxy card by requiring it to state in bold face type the specific person on whose behalf the proxy was solicited. Id. at *9.

     [23].     Regulation of Communications Among Shareholders, Exchange Act Release No. 31326, 1992 WL 301258, at *2 (Oct. 16, 1992).

     [24].     Id. at *23, 31.

     [25].     Regulation of Communications Among Securityholders, Exchange Act Release No. 30849, 1992 WL 151037 at *6 (June 23, 1992).

     [26].     Facilitating Shareholder Director Nominations, Securities Act Release No. 9136, Exchange Act Release No. 62764, 2010 WL 3343532, at *89–91 (Aug. 25, 2010). Rule 14a-11 required management to include properly qualified shareholder nominees in its proxy materials, including the proxy card. 75 Fed. Reg. 56668, 56682 (2010). This rule was struck down in Business Roundtable v. SEC, 647 F.3d 1144, 1156 (D.C. Cir. 2011).

     [27].     Exchange Act Release No. 62764, supra note 26, at *89–91.

     [28].     Id. at 89.

     [29].     Id. at 91.

     [30].     Id. at 89.

     [31].     Amendment to Rules Requiring Internet Availability of Proxy Materials, Securities Act Release No. 9108, Exchange Act Release No. 61560, 2010 WL 616374, at *2 (Feb. 22, 2010) (“The notice and access proxy rules require all issuers and other soliciting persons to post their proxy materials on an Internet Web site and provide a Notice of Internet Availability of Proxy Materials to shareholders.”).

     [32].     Id. at *5; See also Internet Availability of Proxy Materials, Exchange Act Release No. 55146, 2007 WL 148704, at *7 (Jan. 22, 2007) (stating that “the Notice of Internet Availability of Proxy Materials must include . . . [a] clear and impartial identification of each separate matter intended to be acted on”).

     [33].     See Colo. Nat’l Bankshares, Inc., SEC No-Action Letter, 1975 WL 11415 (Sept. 11, 1975); see also In re Stockdale, Exchange Act Release No. 41458, 1999 WL 335407, at *3 (May 27, 1999) (stating respondent’s proxy solicitation violated Rule 14a-4 by failing to state “in bold-face type on whose behalf the solicitation was made”).

     [34].     Exchange Act Release No. 4185, supra note 5, at *1.

     [35].     Colo. Nat’l Bankshares, supra note 33, at *1.

     [36].     Id. “Electioneering” is a violation of the impartiality requirement as described in Exchange Act Release No. 4185, supra note 5, at *1.

     [37].     Colo. Nat’l Bankshares, supra note 33, at *1.

     [38].     885 F. Supp. 1332, 1337 (D. Nev. 1994), vacated pursuant to settlement (1995).

     [39].     Id. at 1348.

     [40].     Id.

     [41].     Id.

     [42].     See supra note 7.

     [43].     EDGAR, SEC, http://www.sec.gov/edgar.shtml (last visited Feb. 17, 2013). Data collected from the supplementary searches helps illustrate instances in which proposals fail to meet the clarity requirement. See infra notes 60–63.

     [44].     Vagueness as a concept has also arisen under the anti-fraud provisions with respect to shareholder proposals. The staff of the Commission has agreed to the exclusion of proposals from the proxy statement under Rule 14a-9. See E.I. du Pont de Nemours and Co., SEC No-Action Letter, 1992 WL 32307, at *1 (Feb. 13, 1992) (“[T]he proposal is so inherently vague and indefinite that neither the shareholders voting on the proposal, nor the Company in implementing the proposal (if adopted), would be able to determine with any reasonable certainty exactly what actions or measures the proposal requires.”). See also U.S. Indus., Inc., SEC No-Action Letter, 1983 WL 884923 (Feb. 17, 1983) (stating that a shareholder proposal could be omitted from proxy materials based on Rule 14a-9 because “the action specified . . . [was] so inherently vague and indefinite that shareholders voting upon the proposal would not be able to determine with any reasonable certainty exactly what action or measures would be taken in the event the proposal were implemented”). 

     [45].     See SEC Staff Legal Bulletin No. 14B, (Sept. 15, 2004), available at https://www.sec.gov/interps/legal/cfslb14b.htm (noting that proposals can be “vague or indefinite” under the antifraud provisions where “neither the stockholders voting on the proposal, nor the company in implementing the proposal (if adopted), would be able to determine with any reasonable certainty exactly what actions or measures the proposal requires.”).

     [46].     For example, in Ford Motor Company’s 2013 proxy card it presented a matter titled: “Relating to Consideration of Recapitalization Plan to Provide that All of the Company's Outstanding Stock Have One Vote Per Share.” Ford Motor Co., Definitive Proxy Statement (Form DEF 14A) (Mar. 28, 2013), available at http://www.sec.gov/Archives/edgar/data/37996/000104746913003543/a2214083zdef14a.htm#gk73201_appendix_.

     [47].     See infra notes 48–49.

     [48].     Wells Fargo & Co., Definitive Proxy Statement (Form DEF 14A) (Mar. 14, 2013), available at http://www.sec.gov/Archives/edgar/data/72971/000119312513107713/d448653ddef14a.htm#toc.

     [49].     Hess Corp., Definitive Proxy Statement (Form DEF 14A) (Mar. 21, 2013), available at http://www.sec.gov/Archives/edgar/data/4447/000119312513119720/d475998ddefc14a.htm.

     [50].     See, e.g., Caterpillar Inc., Definitive Proxy Statement (Form DEF 14A) (Apr. 2, 2013), available at http://www.sec.gov/Archives/edgar/data/18230/000001823013000210/def14a_2013.htm; Bank of America Corp., Definitive Proxy Statement (Form DEF 14A) (Mar. 28, 2013), available at http://www.sec.gov/Archives/edgar/data/70858/000119312513131136/d468848ddef14a.htm.

     [51].     See, e.g., Exxon Mobil Corp., Definitive Proxy Statement (Form DEF 14A) (Apr. 12, 2013) (copying vague titles from the proxy statement to the proxy card), available at http://www.sec.gov/Archives/edgar/data/34088/000119312513152355/d460324ddef14a.htm.

     [52].     Id. at 70.

     [53].     Id. at 71.

     [54].     Aetna Inc., Definitive Proxy Statement (Form DEF 14A) (Apr. 5, 2013), available at http://www.sec.gov/Archives/edgar/data/1122304/000130817913000167/laetna_def14a.htm.

     [55].     Id. at 65 (the description in the proxy statement requests increasing the number of shares in the plan from 15,750,000 to 22,000,000 in order to continue granting equity awards, providing a clearer view of the matter).

     [56].     Id. (titling proposal on proxy card “Approval of the Proposed Amendment to the Amended [Company] 2010 Stock Incentive Plan”). See also Time Warner Cable Inc., Definitive Proxy Statement, at 66 (Form DEF 14A) (Apr. 4, 2013) (abridging proposal from Proposal Regarding Prohibition on Accelerated Vesting of Equity Awards in a Change in Control,” to “Stockholder Proposal on Accelerated Vesting of Equity Awards upon a Change in Control,” eliminating the word “prohibition”), available at http://www.sec.gov/Archives/edgar/data/1377013/000119312513142330/d468143ddef14a.htm#toc468143_56.

     [57].     Royal Caribbean Cruises Ltd., Definitive Proxy Statement (Form DEF 14A) (Apr. 9, 2013), available at http://www.sec.gov/Archives/edgar/data/884887/000119312513147505/d486716ddef14a.htm.

     [58].     Ferro Corp., Definitive Proxy Statement (Form DEF 14A) (Apr. 12, 2013), available at http://www.sec.gov/Archives/edgar/data/35214/000119312513149325/d506539ddefc14a.htm.

     [59].     Rockwell Med., Inc., Definitive Proxy Statement (Form DEF 14A) (Mar. 29, 2013), available at http://www.sec.gov/Archives/edgar/data/1041024/000104746913003618/a2214089zdef14a.htm.

     [60].     See, e.g., McKesson Corp., Definitive Proxy Statement (Form DEF 14A) (June 21, 2013), available at http://www.sec.gov/Archives/edgar/data/927653/000130817913000277/lmckesson_def14a.htm. Other companies use variations of this title. See e.g., Apple Inc., Definitive Proxy Statement (Form DEF 14A) (Jan. 7, 2013) (stating “a non-binding advisory resolution to approve executive compensation”), available at http://investor.apple.com/secfiling.cfm?filingID=1193125-13-5529&CIK=320193; Costco Wholesale Corp., Definitive Proxy Statement (Form DEF 14A) (Dec. 13, 2012) (stating on the proxy card “approval, on an advisory basis, of executive compensation”), available at http://quote.morningstar.com/stock-filing/Proxy-Statement/2013/1/24/t.aspx?t=XBUE:COST&ft=DEF%2014A&d=6848c3bef476f77c8b5273caae12f5e3.

     [61].     17 C.F.R. § 240.14a-21 (2013). The Commission scripted a non-exclusive example of an executive compensation resolution but not a title. See Shareholder Approval of Executive Compensation and Golden Parachute Compensation, Securities Act Release No. 9178, Exchange Act Release No. 63768, 2011 WL 231597, at *10 (Jan. 25, 2011).

     [62].     17 C.F.R. § 240.14a-21.

     [63].     See, e.g., McKesson Corp., Definitive Proxy Statement (Form DEF 14A) (June 21, 2013), available at http://www.sec.gov/Archives/edgar/data/927653/000130817913000277/lmckesson_def14a.htm#_N158F0.

     [64].     Exchange Act Release No. 4185, supra note 5.

     [65].     Colo. Nat’l Bankshares, supra note 33, at *2–3.

     [66].     Honeywell Int’l Inc., Definitive Proxy Statement (Form DEF 14A) (Mar. 7, 2013), available at http://www.sec.gov/Archives/edgar/data/773840/000093041313001467/c72571_def14a.htm (arrow over column titled “For” that management favored and over column titled “Against” that management opposed); Tesoro Corp., Definitive Proxy Statement (Form DEF 14A) (Mar. 21, 2013) (arrow over column titled “Directors Recommend”), available at http://www.sec.gov/Archives/edgar/data/50104/000119312513118426/d468605ddef14a.htm.

     [67].     Goldman Sachs Grp., Inc., Definitive Proxy Statement (Form DEF 14A) (Apr. 12, 2013), available at http://www.sec.gov/Archives/edgar/data/886982/000119312513152411/d447333ddef14a.htm.

     [68].     Most companies use the same language when presenting proposals from each side. For example, on Disney’s 2013 proxy card it lists a management proposal as “To approve the advisory resolution on executive compensation.” Walt Disney Co., Definitive Proxy Statement (Form DEF 14A) (Jan. 18, 2013) (emphasis added). Similarly, in a shareholder proposal Disney uses the same phrase, “to approve,” to introduce the proposal: “To approve the shareholder proposal relating to future separation of chairman and chief executive officer.” Id. (emphasis added).

     [69].     Johnson Controls, Inc., Definitive Proxy Statement (Form DEF 14A) (Dec. 10, 2012), available at http://www.sec.gov/Archives/edgar/data/53669/000119312512496690/d416865ddef14a.htm. Proposal three of the proxy card, offered by management, states: “Approve the proposed restatement of the Restated Articles of Incorporation.” Id. Proposal six, offered by a shareholder, states: “Consider a shareholder proposal for an independent Chair of the Board of Directors.” Id.

     [70].     See, e.g., Cardinal Health, Inc., Definitive Proxy Statement (Form DEF 14A) (Sept. 17, 2013), available at http://www.sec.gov/Archives/edgar/data/721371/000072137113000170/cah-2013xdef14a.htm; Kroger Co., Definitive Proxy Statement (Form DEF 14A) (May 14, 2013), available at http://www.sec.gov/Archives/edgar/data/56873/000120677413001818/kroger_def14a.htm; UnitedHealth Grp., Inc., Definitive Proxy Statement (Form DEF 14A) (Apr. 24, 2013), available at http://www.sec.gov/Archives/edgar/data/731766/000104746913004781/a2214232zdef14a.htm; Google, Inc., Definitive Proxy Statement (Form DEF 14A) (Apr. 24, 2013), available at http://www.sec.gov/Archives/edgar/data/1288776/000130817913000248/lgoogle_def14a.htm; WellPoint, Inc., Definitive Proxy Statement (Form DEF 14A) (Apr. 2, 2013) available at http://www.sec.gov/Archives/edgar/data/1156039/000119312513138728/d484486ddef14a.htm.

     [71].     Exchange Act Release No. 4185, supra note 5, at *1. 

     [72].     Id.

     [73].     Additional guidance on the use of visual devices and the use of varying language when describing management and shareholder proposals would also be useful. 

     [74].     See Recommendations of the Investor as Owner Subcommittee Regarding SEC Rulemaking to Explore Universal Proxy Ballots, SEC (2012), http://www.sec.gov/spotlight/investor-advisory-committee-2012/iac-recommendation-universal-proxy.pdf. See also Amy Borrus, More on CII’s New Policies on Universal Proxy and Board Tenure, Council of Institutional Investors (Oct. 1, 2013), http://www.cii.org/article_content.asp?article=208 (proposal for regulatory reform).

     [75].     The Commission tried this in 1948. See Exchange Act Release No. 4185, supra note 5, at *1.

            *     J.D. Candidate 2014, University of Denver Sturm College of Law.