On Sept. 1, 2022, U.S. public companies entered a new era of contested elections with the implementation of the U.S. Securities and Exchange Commission’s new Rule 14a-19 requiring the use of “universal” proxy cards at all such elections. We anticipate that this change will lead to an increased number of proxy contest threats and confer substantial advantages to activists and hostile acquirors at public companies. This will further impact the M&A market, as activists will use the threat of a proxy contest to drive companies towards a sale. For both companies not yet threatened with a proxy contest and those already facing a dissident under the new regime, we recommend that management and boards of directors be well prepared for the changing landscape of shareholder activism that will likely result from the recent implementation of the universal proxy card system.

An Overview of the New Framework

In a contested corporate election at a public company, shareholders cast their vote for candidates from two competing slates of director nominees, either in person at the company’s shareholder meeting or by proxy. Shareholders voting by proxy are presented with two cards and select whether to vote on the company card or the dissident card. Previously, the separate proxy cards from the company and dissident each included only the respective parties’ different slates. Effectively, shareholders had to vote for candidates from only one slate of nominees and could not choose some of the company’s candidates and some of the dissident’s candidates.