United States: SEC's Division Of Corporation Finance Revamps Administration Of No-Action Requests Under Rule 14a-8 Regarding Shareholder Proposals

Changes May Create New Challenges for Public Companies, and Signal a Reduction of the SEC Staff's Traditional Role As Arbiter Between Companies and Shareholders

On September 6, 2019, the SEC's Division of Corporation Finance announced changes to how it will process no-action requests submitted pursuant to Exchange Act Rule 14a-8 starting with the upcoming proxy season. A copy of the announcement is available here.

Rule 14a-8 permits shareholders to submit proposals for inclusion in a public company's proxy statement if the shareholder and the proposal comply with the rule's requirements. If a company believes that it has grounds to exclude a proposal because one or more of the substantive or procedural requirements of the rule have not been met, it is required to notify the SEC and the shareholder of its intention to exclude the proposal and its reasons for doing so. The staff of the Division of Corporation Finance has traditionally responded to these notices and expressed its informal views with published no-action letters indicating whether the staff agrees or disagrees with the company's reasons for excluding the shareholder's proposal.

Pursuant to the Division's recent announcement, the staff will make two changes to this process in the upcoming season.

First, the staff will not publish written no-action letters with respect to every notice pursuant to Rule 14a-8 but in some cases will respond orally instead of in writing. According to the announcement, the staff will issue written response letters only when a letter would "provide value," such as providing more broadly applicable guidance about complying with Rule 14a-8.

Second, the staff may decline to state a view with respect to particular requests.  

As the announcement was issued solely by the Division of Corporation Finance, it is not immediately clear whether the Division of Investment Management will follow a similar approach to notices for exclusion pursuant to Rule 14a-8 that it processes, such as those filed by registered investment companies and business development companies.

As an initial matter, the staff's announcement should not change how companies analyze and respond to incoming shareholder proposals in the upcoming season. Rule 14a-8(j) will still require companies to notify the SEC and the shareholder of their intention and reasons for excluding a shareholder proposal, and the staff's new processes should not have a substantive impact on how these communications are prepared.

The announcement does not state whether the staff intends to make its oral responses public, and if so, how those responses would be publicized. Accordingly, if a company receives an oral response to its no-action request and excludes a shareholder's proposal, it may need to respond to inquiries from other shareholders or stakeholders regarding its basis for the exclusion of the shareholder's proposal, without having a public statement of the staff to support such exclusion. Further, while the announcement and recent public remarks by Division Director William Hinman indicate that the staff intends to continue to publish written responses when those responses will provide precedential value, there may still be situations where companies seeking no-action relief are not aware of non-public staff guidance provided to other similarly-situated companies.

The Division's announcement also does not specify what types of proposals or issues will lead its staff to decline to state a view. Historically, the staff generally has declined to provide a view only if the company's ability to exclude the proposal was the subject of ongoing litigation or in other limited situations. While the Division's focus appears to be on reducing the number of written responses where the answer is clear-cut based on publicly-available precedent, it is possible that over time the staff may also avoid expressing a view on more controversial proposals under the new procedures. For example, application of  Rule 14a-8(i)(7), which permits companies to exclude proposals on "ordinary business" matters, has been controversial in some cases, particularly as it has been applied to proposals that may implicate "significant social policy" issues. The staff may also choose to avoid answering difficult interpretive questions during the shareholder proposal season, consistent with its approach to addressing the exclusion of certain proxy access proposals pursuant to Rule 14a-8(i)(9) in the 2014 - 2015 proxy season. As discussed here, in the proxy access situation, after issuing an initial no-action response letter on this issue the staff published a statement that it would not express further views on the question during that proxy season. 

If the staff does not express a view on a company's ability to exclude a proposal, the company remains free to exclude the proposal from its proxy materials. While in all cases the company may decide to exclude the proposal regardless of the nature and format of the staff's response – since the staff's response is non-binding -- the absence of an expressed staff view supporting the company's decision may increase the likelihood that the shareholder proponent will challenge the exclusion of the proposal in court. If the staff provides an oral response favorable to the company's position, it is unclear whether a court would grant such a response the deference that courts have accorded written no-action letters. 

The announcement provides that companies and other interested parties should not interpret the staff declining to state a view on a particular request as indicating that the proposal must be included in the company's proxy statement. However, if the staff does decline to state a view on a company's request – or even if the staff orally provides a view -- the company may have a difficult decision to make. Before excluding the proposal without the support of a published no-action letter from the staff, companies and their advisers should carefully evaluate the nature of the proposal, the bases for excluding the proposal, the shareholder proponent and other factors, including the prospect of litigation.

We are continuing to monitor for additional guidance from the staff on these issues. If you have any questions, please contact your usual Proskauer attorney.

SEC's Division Of Corporation Finance Revamps Administration Of No-Action Requests Under Rule 14a-8 Regarding Shareholder Proposals

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions