Empowering Shareholders Act of 2023

To amend the Investment Advisers Act of 1940 with respect to proxy voting of passively managed funds, and for other purposes. 1. Short title This Act may be cited as the Empowering Shareholders Act of 2023 2. Proxy voting of passively managed funds (a) In general The Investment Advisers Act of 1940 ( 15 U.S.C. 80b–1 et seq. 15 U.S.C. 80b–8 208A. Proxy voting of passively managed funds (a) Investment adviser proxy voting (1) In general An investment adviser that holds authority to vote a proxy solicited by an issuer pursuant to section 14 of the Securities Exchange Act of 1934 ( 15 U.S.C. 78n (A) vote in accordance with the instructions of the beneficial owner of such covered securities; (B) vote in accordance with the voting instructions of such issuer; or (C) abstain from voting. (2) Exception Paragraph (1) shall not apply with respect to a vote on a routine matter. (b) Safe harbor With respect to a matter that is not a routine matter, in the case of a vote described in subsection (a)(1), an investment adviser shall not be liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision thereof, or under any contract or other legally enforceable agreement (including any arbitration agreement), for any of the following: (1) Not soliciting voting instructing from any person under subsection (a)(1) with respect to such vote. (2) Voting in accordance with the voting instructions of an issuer pursuant to subparagraph (B) of such subsection. (3) Abstaining from voting in accordance with subparagraph (C) of such subsection. (c) Definitions In this section: (1) Covered security The term covered security (A) means a voting security, as that term is defined in section 2(a) of the Investment Company Act of 1940 ( 15 U.S.C. 80a–2(a) (B) does not include any voting security (as defined in subparagraph (A)) of an issuer registered with the Commission as an investment company under section 8 of the Investment Company Act of 1940 ( 15 U.S.C. 80a–8 (2) Passively managed fund The term passively managed fund (A) is designed to track, or is derived from, an index of securities or a portion of such an index; (B) discloses that the qualified fund is a passive index fund; or (C) allocates not less than 40 percent of the total assets of the qualified fund to an investment strategy that is designed to track, or is derived from, an index of securities or a portion of such an index fund. (3) Qualified fund The term qualified fund (A) an investment company, as that term is defined in section 3 of the Investment Company Act of 1940 ( 15 U.S.C. 80a–3 (B) a private fund; (C) an eligible deferred compensation plan, as that term is defined in section 457(b) (D) a trust, plan, account, or other entity described in section 3(c)(11) of the Investment Company Act of 1940 ( 15 U.S.C. 80a–3(c)(11) (E) a plan maintained by an employer described in clause (i), (ii), or (iii) of section 403(b)(1)(A) (F) a common trust fund, or similar fund, maintained by a bank; (G) any fund established under section 8438(b)(1) of title 5, United States Code; or (H) any separate managed account of a client of an investment adviser. (4) Registrant The term registrant (5) Routine matter The term routine matter (A) includes a proposal that relates to— (i) an election with respect to the board of directors of the registrant; (ii) the compensation of management or the board of directors of the registrant; (iii) the selection of auditors; (iv) material conflicts; (v) declassification; or (vi) transactions that would transform the structure of the registrant, including— (I) a merger or consolidation; and (II) the sale, lease, or exchange of all, or substantially all, of the property and assets of a registrant; and (B) does not include— (i) a proposal that is not submitted to a holder of covered securities by means of a proxy statement comparable to that described in section 240.14a–101 of title 17, Code of Federal Regulations, or any successor regulation; (ii) a proposal that is— (I) the subject of a counter-solicitation; or (II) part of a proposal made by a person other than the applicable registrant; or (iii) any other matter determined by the Commission or an exchange registered under section 6 of the Securities Exchange Act of 1934 ( 15 U.S.C. 78f . (b) Effective date The amendment made by this section shall take effect on the first August 1 that occurs after the date that is 2 years after the date of enactment of this Act.

Summary: Empowering Shareholders Act of 2023 This bill establishes guidelines for passively managed funds (e.g., index funds) that vote shares on behalf of fund investors in proxy shareholder votes. Under the bill, these funds must (1) vote shares according to instructions from the beneficial owner of the securities, (2) vote shares according to the voting instructions of the issuer, or (3) abstain from voting. The bill establishes an exemption for routine matters, such as an election to the board of directors. Additionally, the bill establishes a safe harbor from liability for investment advisers for (1) not soliciting voting instructions from beneficial owners, (2) voting shares according to the voting instructions of the issuer, or (3) abstaining from voting.