Does the identity of the shareholder submitting a proposal at a corporation’s annual meeting impact the merits of that proposal? To dig into this a bit more, assume the following facts, which are based on some recent engagement I had with Dow Inc. in my capacity as Executive Director of the Free Enterprise Project, which is part of the National Center for Public Policy Research (NCPPR).
First, a Dow shareholder is concerned about illegal discrimination possibly being engaged in by Dow under the guise of DEI. For example, Dow proudly proclaims that: “Inclusion metrics [are] included in our Annual Performance Award program for approximately 3,000 people leaders and senior leaders,” and Dow is committed to “exceed $500 million in global certified diverse supplier spend by the end of 2025.”
Second, that shareholder would like to exercise their right to file a shareholder proposal to address that concern but is quite reasonably concerned about backlash potentially extending all the way to physical violence.
Third, this shareholder contacts the NCPPR to file the proposal on the shareholder’s behalf.
Fourth, when NCPPR asks Dow to only name NCPPR as the proponent in its proxy statement, the company refuses despite acknowledging there is no regulatory requirement compelling it to publish the name of the owner of the shares in the proxy statement.
Is this good corporate governance? Or is this better described as unnecessarily doxing a shareholder to undermine accountability? Before answering, consider the following.
First, shareholder engagement is widely considered to be an important element of good corporate governance (including being repeatedly referenced in Dow's 2025 proxy statement), and shareholder proposals are a part of that engagement. But requiring disclosure of a shareholder's name arguably creates an unnecessary barrier to what could otherwise be efficient engagement.
Second, disclosing the name of the shareholder implies the identity of the proponent matters to the merit of the proposal, which is contrary to the reality that the merit of the proposal is solely contained within its four corners. Notably, if the proposal is vague or misleading, then the corporation may exclude the proposal on that basis as per SEC rules. Accordingly, any argument that the identity of the shareholder is necessary to avoid misleading voters is likely itself a misleading argument.
Third, choosing to disclose the name of the proponent sets the corporation up for being perceived as engaging in a wink-and-nod campaign to target particular viewpoints. This is an issue that deserves much more fleshing out, but suffice it to say that there is at least one perspective from which increased calls to name proponents constitutes an attempt to undermine proposals being filed by conservative proponents following increases in anti-ESG / anti-DEI / right-of-center proposals.
Relatedly, when I raised these concerns with Dow and was told, among other things, that “we include this type of shareholder information in our proxy in response to feedback from our shareholders.” However, this leaves open the possibility that those shareholders want that information for purposes of viewpoint discrimination and that Dow should at the very least include that possibility as part of its relevant decision-making process.
One very quickly gets to some uncomfortable questions once one asks: "Why does the identity of the shareholder matter?" Again, this is particularly true given all the guardrails already in place to screen out frivolous or misleading proposals before they get on the proxy, including at least 13 different grounds for exclusion under the SEC’s Rule 14a-8. Notably, if the name of the proponent is material, then the SEC would arguably already require such information to be published in the proxy, but it does not. Instead, the SEC allows corporations to omit the name of the shareholder from the proxy statement so long as there is notice that the name will be made available upon request.
So, I ask again, is Dow in the business of doxing its shareholders?
