Corporations in the Crosshairs: Shareholder Proposals Target DEI, Human Rights Hypocrisy, Unrealistic Emissions Commitments and More

Citigroup, IBM, Coca-Cola, Pepsi, MGM, Capital One, Kraft Heinz and Berkshire Hathaway Should Return to Neutrality on Social and Political Issues

Washington, D.C. – In one of their busiest weeks of the season, shareholder activists with the National Center for Public Policy Research’s Free Enterprise Project (FEP) will present proposals at eight shareholder meetings this week – Citigroup, IBM, Coca-Cola, Pepsi, MGM, Capital One, Kraft Heinz and Berkshire Hathaway.

FEP’s proposals with Citigroup (Proposal #8), Coca-Cola (Proposal #6), Pepsi (Proposal #11) and MGM (Proposal #5) ask that their boards commission and publish reports on whether the companies engage in any practices associated with diversity, equity, and inclusion (DEI) initiatives that may create risks of discriminating illegally on bases such as race and sex, thereby potentially triggering justice-seeking responses from stakeholders of the companies (including employees, suppliers, contractors and retained professionals), and the potential costs of such discrimination to their business.

The U.S. Supreme Court ruled in SFFA v. Harvard on June 29, 2023 that discriminating on the basis of race in college admissions violates the equal protection clause of the 14th Amendment. Attorneys General of thirteen states warned Fortune 100 companies on July 13, 2023 that SFFA implicated corporate DEI programs. Prior legal advice regarding the legality of racially discriminatory programs has been called into question post-SFFA. Recent analysis of American Fortune 100 hiring in the wake of the 2020 race riots found that whites were excluded from 94 percent of the hiring decisions, providing prima facie evidence of illegal discrimination by these companies.

In its proposal with IBM (Proposal #5), FEP asks that the Board of Directors commission and publish a third-party review of whether the Company’s activities and expenditures related to doing business in China align with its ESG commitments, including its Human Rights Statement of Principles.

In its supporting statement, FEP notes:

IBM’s 2022 ESG report touts its environmental and ethical impacts. It advertises the Company’s goals of reducing pollution and reaching net-zero greenhouse gas emissions by 2030, as well as policies and practices that it says prioritize qualities such as ethics and accountability. The ESG report also highlights the Company’s commitment to human rights and its Human Rights Statement of Principles….

IBM nonetheless conducts significant business in China. According to reports, IBM facilitates the Chinese regime’s mass surveillance program. It also conducts business in China despite China leading the world in greenhouse gas emissions and committing genocide against ethnic minorities — actions counter to everything that IBM’s ESG report says the company stands for.

FEP’s proposal with Capital One (Proposal #6) targets discrimination toward employees based on their political and religious views. FEP asks that the Board of Directors conduct an evaluation and issue a civil rights and non-discrimination report evaluating how its policies and practices impact employees and prospective employees based on their race, color, religion (including religious views), sex, national origin, or political views, and the risks those impacts present to Company’s business.

In its supporting statement, FEP notes:

Respecting diverse views allows the Company to attract the most qualified talent, promote a healthy and innovative business culture, and contribute to a healthy economic market and marketplace of ideas.

Despite this, the Viewpoint Diversity Score Business Index (2023) found 91% of scored companies promote divisive training concepts like critical race theory (CRT) that replace rich cultural and ideological diversity with a monolithic focus on group identity. Capital One goes further, from training to practice. It appears to inject the illegal considerations of race and sex into every supplier-recruitment decision, and to offer training programs and growth opportunities exclusively to race, sex and orientation groups it favors, thus discriminating against “non-diverse” suppliers. And despite the fact that Capital One actively discriminates against disfavored “non-diverse” people such as whites, men and straight people, none of those groups is represented by any “business resource groups,” while favored, “diverse” groups to whose benefit Capital One’s discrimination runs have a series of surface-characteristic-based lobbying groups. This speaks to systemic discrimination at Capital One against the “non-diverse.”

In its proposal with Kraft Heinz (Proposal #6), FEP requests the Company produce a report analyzing the risks arising from its voluntary carbon‑reduction commitments.

In its supporting statement, FEP notes:

Voluntary carbon-reduction commitments create risk of SEC enforcement without providing clear benefit to the climate or other values….

Kraft Heinz has voluntarily committed to halving GHG emissions by 2030 and being a net‑zero company by 2050. This promise includes commensurate reductions in Scope 3 emissions, despite the fact the Company has no real control over Scope 3 emissions and has failed to report on its evaluation of the technological or financial feasibility of such commitments. Given the SEC’s climate and ESG enforcement actions, the Company must exercise caution and provide transparency about such commitments.

Similarly, in its proposal with Berkshire Hathaway (Proposal #6), FEP requests the company audit its financial assumptions and consider other research with regard to its decarbonization policies.

FEP notes in its supporting statement:

The International Energy Agency’s (IEA) Net Zero 2050 Roadmap (NZE) describes an energy sector path for net zero GHG emissions. The IEA claims no investment in new fossil supply projects is needed in a net zero scenario (NZE)…

In line with such assumptions, Berkshire Hathaway Energy (BHE), which is 92% owned by Berkshire Hathaway, has invested $37 billion in renewable energy generation and expects to complete its transition to net zero emissions by 2050…. These investment decisions presume the IEA NZE assumptions are true, but it is unclear what, if any, analysis Berkshire Hathaway has done to protect company assets should NZE prove false.

A 2023 study by the Energy Policy Research Foundation (EPRF) found that net zero advocates have misconstrued the IEA’s position on new oil and gas investment, and that the IEA has made questionable assumptions and milestones for NZE about government policies, energy and carbon prices, behavioral changes, economic growth, and technology maturity….

Should the EPRF’s study ring true, our Company stands to lose tens of billions of dollars in renewable energy investments, plus the costs of reverting back to reliable energy sources.

More information about these proposals, as well as other key votes, can be found in FEP’s mobile and web app, ProxyNavigator.

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