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A different type of proxy “off-season”

Freshfields Partner Pamela Marcogliese and KPMG BLC Senior Advisor Stephen Brown share their views on recently concluded annual meetings and proxy proposals.

“This proxy season marked an inflection point,” said Pamela Marcogliese, partner at Freshfields Bruckhaus Deringer LLP, on the June KPMG Board Leadership Center (BLC) Quarterly Webcast. “Support for very specific environmental and social proposals continued to decrease, but that doesn’t mean support for ESG issues, in general, is in decline.”

Speaking with BLC Senior Advisor Stephen Brown, Marcogliese shared highlights of recently concluded annual meetings, shareholder proposals, and activist campaigns, while looking forward to how engagement might proceed over the course of the next year.

“Expect the next wave of proposals to reflect the cultural reality in context,” said Brown. Indeed, with landmark Supreme Court case decisions over the past two years impacting reproductive rights, racial preference in college admissions, and the first amendment rights of businesses, Brown and Marcogliese expect shareholders to seek more information on how companies may react.

Recently, some shareholder proposals have what Marcogliese referred to as an “anti-ESG” stance, such as by asking companies to take more explicit action to study the effects of net-zero policies or carbon reduction, or even walk back support of shareholder-endorsed racial equity audits. Such proposals gained little support, but their presence on the ballot is indicative of a more permissive US Securities and Exchange Commission (SEC). The SEC has granted fewer no-action letters, compelling companies to settle or bring items to a vote. Such inaction is inline with the recently adopted Universal Proxy Rule, which puts all director nominees—including the management slate and the dissident slate—on the same proxy ballot, said Marcogliese.

Only 2 out of nearly 200 environment-related shareholder proposals received majority support through June 15, according to Freshfields’ analysis of data from Institutional Shareholder Services. But the SEC’s pending climate rule, currently slated to be finalized this fall, could mandate many of the disclosures that some investors have been requesting over the years. The adoption of “stringent rules” by the EU, which will go live over the next 18 months, could challenge companies operating in Europe to reconcile US versus non-US disclosures rules, said Marcogliese.

“We have also seen an increasing tendency for investors to hold individual directors accountable for perceived deficiencies in a variety of areas,” said Marcogliese. For example, instead of using their votes to enforce overboarding policies, institutional investors are now putting that responsibility back on nominating and governance (nom/gov) committee chairs, expecting them to evaluate their own members’ abilities to hold multiple board seats. Without a clear policy or action, the investors would now vote against a nom/gov committee chair instead of the perceived overboarded directors.

“Companies should pay attention to the published policies from major investors,” said Marcogliese. “You don’t have to do what they say, but you should have a position that’s defensible.”

Marcogliese also added that there has been an uptick in boards adding additional committees. “Decisions out of Delaware continue to address the board’s duty of oversight, monitoring company risks, and addressing red flags appropriately,” said Marcogliese. Cyber risk is commonly cited, but also financial and environmental and social risks. “These are all mission-critical.”

“A lot of ‘ESG’ is simply about operational risk,” said Brown.

Find the webcast replay and proxy season recap presentation from Freshfields at

Proxy issues on the board's agenda

Which of the following proxy issues did your board spend significantly more time discussing this year compared to prior years? (Select up to 3)

Survey responses from 246 self-identified corporate directors registered for the June 29, 2023 KPMG Board Leadership Center webcast.

Proxy issues on the board's agenda

How confident are you that your board currently provides sufficient oversight of material ESG issues?

Survey responses from 220 self-identified corporate directors registered for the June 29, 2023 KPMG Board Leadership Center webcast. The views and opinions expressed herein are those of the survey respondents and do not necessarily represent the views and options of KPMG LLP.

Takeaways from the 2023 proxy season

Stephen Brown and Pamela Marcogliese discuss takeaways from the 2023 proxy season and what boards and shareholders might expect for 2024

Meet our team

Image of Pamela L. Marcogliese
Pamela L. Marcogliese
Partner, Freshfields Bruckhaus Deringer LLP
Read bio
Image of Pamela L. Marcogliese

Pamela L. Marcogliese

Partner, Freshfields Bruckhaus Deringer LLP

Pamela is a partner and Head of US Transactions in New York. Her practice focuses on capital markets transactions and corporate governance matters. She has deep experience providing issuers and underwriters with advice on the full range of debt and equity offerings, including initial public offerings, direct listings and SPAC transactions; shelf registrations and takedowns; convertible offerings; block trades; private placements; stock repurchase programs; exchange offers; MTN programs; derivatives; tender offers; open market purchases; consent solicitations and liability management matters.

She regularly advises boards of directors and management on a variety of corporate governance topics, including dual class and multi-class share structures; crisis preparedness, mitigation and response; board composition, refreshment, and director independence; succession planning; stakeholder governance and public benefit corporation (PBC) matters; fiduciary duties, conflicts and risk oversight; shareholder engagement and activism defense; shareholder proposals and proxy season trends; environmental, social and governance (ESG) issues; and cybersecurity matters. In addition to her practice, she regularly lectures and writes on corporate governance and securities law topics.

Over the course of the last few years, Pamela has been invited to participate as a speaker with TechGC’s Global Summit, Corporate Board Member’s annual Board Summit, Berkeley Law’s Independent Director Initiative, focused on training for executives/leaders from underrepresented backgrounds in Silicon Valley to serve as independent directors on venture-backed boards, TechGC fireside dinners, KPMG’s Board Leadership Webcast, PLI’s Advance Venture Capital 2023 conference and Niri’s Fundamentals of Investor Relations, among many others

In September 2022, Pamela authored the second edition of So you want to do well by being good? – a one-of-a-kind publication that covers considerations for companies converting to public benefit corporations. Pamela remains the only lawyer in the entire United States ranked in the Hall of Fame for corporate governance by Legal 500. She is ranked among the top lawyers for Corporate Governance in Euromoney’s Women in Business Law Expert Guides for 2021 and 2022; and was named to The Deal’s Top Women in Dealmaking 2021 and 2022 for advising boards in the activism defense context. 

Image of Stephen L. Brown
Stephen L. Brown
Senior Advisor, KPMG Board Leadership Center, KPMG US

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