On Friday, the SEC’s Division of Corporation Finance announced that it will discontinue responding to Rule 14a-8 no-action requests entirely, effective immediately. Moving forward, exclusion decisions will need to rest on the company’s and its counsel’s legal analysis of the rule, prior staff guidance, and case law, with no staff comfort available. Further, litigation will be the only avenue for resolving disputed exclusions.
Here is a summary of the changes to keep in mind as you plan for next year's proxy season:
- SEC will no longer respond to 14a-8 no-action requests. The division will no longer respond to Rule 14a-8 no-action requests, including requests under Rule 14a-8(i)(1) (i.e., proposals not a proper subject for action by shareholders under state law), which had previously been carved out of the November 2025 statement. This change is effective immediately and continues unless and until the division announces otherwise.
- SEC will not issue any response letters. The division also will no longer issue the response letters it had been providing under the November 2025 approach, i.e., letters stating that, based solely on a company’s or counsel’s unqualified representation of a reasonable basis for exclusion, the staff would not object to omission. Companies should not expect any staff position on an intended exclusion.
- Rule 14a-8(j) notices are still required. Companies intending to exclude a proposal must continue to submit the notice and information the rule requires, now through the online Shareholder Proposal Form (the Division’s shareholder proposal email address is no longer functional). Questions and other correspondence go through the same form.
- SEC wants to return its focus to Securities Act and Exchange Act filings. The Division framed the change as a resource allocation decision, citing the need to focus on Securities Act and Exchange Act filing reviews and the existing body of Commission and staff guidance on Rule 14a-8. It also noted that no response from the staff has ever been legally required for 14a-8(j) notices (citing the 1976 informal procedures release).
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