Companies have now been through two proxy seasons under the 2010 Dodd-Frank Act's "Say on Pay" provision, which calls for investor advisory votes on executive compensation. And some have not had an easy time of it.
In 2011, more than three dozen companies failed to get approval on their Say on Pay votes. But, says Morrison & Foerster partner Michael Frank, "those companies have been learning. Many responded by actively engaging with their shareholders to explain plans, and then ended up getting approval in 2012." By June, 26 of the companies that failed in 2011 had passed, according to compensation consultants Semler Brossy.
Nevertheless, some 40 companies have failed on Say on Pay this year. Institutional and individual investors alike are seeing these votes as a way to make themselves heard, says Frank, and companies should learn from those that improved on their 2011 result: "Executives will want to be working with investors ahead of time to make sure they understand—and approve of—the rationale behind compensation plans, because this issue is not going to go away."
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