Business Roundtable v. SEC: The Battle for Access (Specious and Self Serving) (Part 6D)

As for the analysis of the role of unions and public pension plans in the debate over access, here is the take by TIAA-CREF, a fund that fits into neither category.  

• Petitioners devote much of their brief to arguing that the proxy access rule is flawed because “activist” shareholders—which allegedly include “union pension funds” and “government pension funds”—have “special interests that may not represent shareholders’ interests as a whole.” Br. 10. According to petitioners, “investors . . . associated with state government and labor unions . . . often appear to be driven by concerns other than a desire to increase the economic performance of the companies in which they invest.” Br. 11 (internal quotation marks and citation omitted). by the SEC was particularly egregious because the purported problem of union and public pension fund abuse “has been at the heart of the proxy access debate for more than a decade.” Br. 45. 
  



• Although TIAA-CREF finds petitioners’ arguments related to the roles and objectives of union and public pension funds specious and self-serving, they are undoubtedly a central part of the petitioners’ presentation to this Court. Consequently, TIAA-CREF would expect that a brief from the Council would focus substantially on presenting a very different perspective on the motivations and goals of those entities from that advanced by petitioners. However, from the perspective of TIAA-CREF, the issue of “shareholder activism to advance objectives other than the maximization of shareholder value” is nowhere near “the heart of the proxy access debate.” Br. 45. As set forth above, TIAA-CREF’s mission is to help the individuals who invest with us to plan for and live through retirement—and our only interest in the proxy access rule lies in using it as a tool to attempt to maximize shareholder value. TIAA-CREF therefore seeks leave to file a separate amicus brief addressing the benefits of the proxy access rule unencumbered by the need to respond to extensive allegations that do not concern TIAA-CREF or the vast majority of its participants.

Apparently unconvinced, the DC Circuit panel hearing the case has denied TIAA-CREF's motion.  Assorted briefs and motions in this case can be found at the DU Corporate Governance web site.