WASHINGTON—This week, United States Senator Bill Hagerty (R-TN), a member of the Senate Banking Committee and head of the committee’s working group on proxy advisors, sent a letter to Attorney General Pamela Bondi and Federal Trade Commission Chairman Andrew Ferguson, urging them to investigate ISS and Glass Lewis for antitrust violations.
“The dominant proxy advisory firms, [ISS] and [Glass Lewis], control more than 90% of the U.S. market for proxy advisory services,” Hagerty wrote. “These foreign-owned firms exploit their market power to suppress competition, hijack corporate governance, impose ideological agendas, drive companies’ capital allocation decisions, influence U.S. public policy on important matters, and undermine the welfare of American investors and consumers. Accordingly, I urge the Department of Justice and Federal Trade Commission to investigate these firms for violations of federal antitrust law.”
Hagerty’s letter builds on his ongoing efforts to address abuses in the proxy advisory market. Previously, Hagerty demanded answers and documents from ISS after the firm publicly acknowledged that it may support proposals even though they are “not linked to long-term shareholder value.” He also sponsored the Putting Investors First Act, legislation to expand the SEC’s authority over proxy advisory firms.
A copy of the letter can be found here and below.
Dear Attorney General Bondi and Chairman Ferguson,
The dominant proxy advisory firms, Institutional Shareholder Services Inc. (ISS) and Glass, Lewis & Co. (Glass Lewis), control more than 90% of the U.S. market for proxy advisory services. These foreign-owned firms exploit their market power to suppress competition, hijack corporate governance, impose ideological agendas, drive companies’ capital allocation decisions, influence U.S. public policy on important matters, and undermine the welfare of American investors and consumers. Accordingly, I urge the Department of Justice and Federal Trade Commission to investigate these firms for violations of federal antitrust law.
The market power of ISS and Glass Lewis grants them enormous sway over public companies. A study of 175 institutional investors—managing more than $5 trillion in assets— revealed that the institutions followed proxy advisor recommendations more than 95% of the time. The influence of the proxy advisors enables them to dictate public companies’ governance standards, executive compensation practices, and corporate policies. Through the power of vote recommendations adverse to determinations of independent boards of directors as well as negative recommendations against board members themselves, the firms effectively force compliance even when these standards or practices are ideologically motivated, irrelevant, and/or destructive to shareholder value. In so doing, the proxy advisors have also been successfully pressuring companies to engineer social change outside the democratic process and shaping U.S. public policy on a wide range of issues, from energy to sensitive social policies. It is evident that ISS and Glass Lewis exercise de facto regulatory power over public companies, but without any of the accountability or transparency ordinarily demanded of such a role.
The firms leverage their market power by offering consulting services on the same or substantially similar items as those on which they provide proxy advisory services—a conflict of interest that raises significant anticompetitive concerns. ISS, for example, offers proxy advisory services to institutional investors with respect to companies’ say-on-pay proposals while also selling corporate consulting services to companies regarding the executive compensation programs subject to a say-on-pay vote. Similarly, ISS offers consulting services to companies with respect to equity compensation plans, while also providing recommendations to institutional investors as to how to vote on those same plans. This dynamic results in a coercive pay-to-play setup, where public companies are pressured to purchase consulting services to avoid or remedy negative proxy recommendations or assure the support of the proxy advisors, as the case may be. Indeed, many companies report being approached by the consulting arm of ISS during the same year in which they receive a negative vote recommendation from the firm. ISS also provides its institutional clients with corporate governance ratings on issuers, while also offering consulting services to corporate clients so that those issuers can improve their governance scores. This dual role—both rating companies and advising them—further enhances the proxy advisors’ power and drives important corporate practices and policies. While Glass Lewis has claimed that it does not offer consulting services, like ISS it offers equity plan advisory services to public companies. It also advises activists on influencing companies through shareholder proposals and other campaigns. The firm engages in these practices even though it has openly acknowledged that “the provision of consulting services to corporate issuers, directors, dissident shareholders and/or shareholder proposal proponents, creates a problematic conflict of interest.”
The link between consulting services and favorable ratings benefit both ISS and Glass Lewis by foreclosing competition. Revenues generated from consulting may permit the firms to cross-subsidize their proxy advisory services, enabling them to further expand and cement their market share. Such self-dealing practices are inherently anticompetitive and demand scrutiny.
ISS and Glass Lewis also appear to coordinate their voting guidelines and governance standards in ways that suppress competition and reduce the ideological and analytical diversity of services available in the market. The House Judiciary Committee has found evidence that the firms collaborated with organizations such as Climate Action 100+ to jointly issue nearly identical recommendations—effectively steering institutional investors toward predetermined outcomes guided by partisan ideology, not shareholder value. This parallelism is reinforced by the firms’ control of proprietary voting platforms—ISS’s ProxyExchange and Glass Lewis’s Viewpoint—which encourage institutional clients to automatically vote in alignment with the firms’ recommendations. Known as “robovoting,” this practice discourages independent fiduciary analysis and only deepens investors’ dependence on the firms, as some major investment managers do not even have personnel responsible for verifying that robovotes are correctly cast. While the firms often point critics to their “benchmark” reports, they continue to offer comparatively more extreme and politically contentious robovoting options through their insufficiently scrutinized “specialty” reports, often referred to as their “shadow” reports.
The market power and anticompetitive business practices of ISS and Glass Lewis inflict harm across the U.S. economy: potential competitors are foreclosed from entering or expanding within the proxy advisory market; capital formation is diminished as companies are deterred from going public; the cost of capital for certain industries, such as coal and oil and gas, is higher; the competitiveness of the US capital markets is impacted; boards and management lose control over their own corporate policies and practices; investors suffer the financial consequences of ideologically driven and economically unsound corporate decisions; finally, consumers pay higher prices due to operational inefficiencies and increased costs.
For these reasons, I urge the Department of Justice and Federal Trade Commission to investigate ISS and Glass Lewis and take all necessary steps to promote competition in the proxy advisory market.
Sincerely,
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