On the heels of Corp Fin issuing two no-action responses on voting instruction plans to Goldman Sachs and Tesla last week – with the Tesla response specifically stating that other companies can rely on that guidance – the Staff issued two new CFIs yesterday about VIPs.
One CFI states that a company can decide to offer only one type of standing voting instruction – so it doesn’t need to cater to the requests from shareholders to offer other types.
The other CFI deals with a situation whereby a company permits shareholders to submit standing voting instructions cast in accordance with third-party recommendations – the Staff noted there are a few necessary guardrails to institute when doing so, including consideration of Rule 14a-9 (ensuring shareholders are furnished with material information about the recommendations necessary to understand how their shares will be voted).
Here are the two CFIs:
- Question 189.01
Question: A registrant implements a retail voting program that allows shareholders to provide standing voting instructions to the registrant in reliance on staff no-action letters (e.g., Exxon Mobil Corporation (Sept. 15, 2025), The Goldman Sachs Group, Inc. (Sept. 28, 2026), and Tesla, Inc. (Sept. 29, 2026) no-action letters) or other applicable staff guidance. Under the retail voting program, shareholders can only provide standing voting instructions that require the registrant to vote their shares in accordance with the recommendations of the registrant’s board of directors on proposals presented for a vote at shareholder meetings. The registrant receives a request that its program offer additional standing voting instructions for shareholders to select from, such as an instruction that requires the registrant to vote against the board’s recommendations on proposals presented for a vote at shareholder meetings. Is the registrant required under the federal proxy rules to offer different types of standing voting instructions in its retail voting program?
Answer: No. The federal proxy rules do not require any person to implement a retail voting program, nor do the federal proxy rules require any person that implements a retail voting program to offer more than one type of standing voting instructions, including any suggested by another person. [October 8, 2026]
- Question 189.02
Question: Can a registrant’s retail voting program offer shareholders an option to submit standing voting instructions that require votes to be cast in accordance with voting recommendations issued by a third party?
Answer: A registrant may be engaging in a solicitation subject to the federal proxy rules when it communicates with shareholders about submitting standing voting instructions through the registrant’s retail voting program. Accordingly, absent an available exemption under Rule 14a-2(a), such communications may be soliciting materials subject to Rule 14a-9, which prohibits material misstatements and omissions.
Registrants that want to permit shareholders to submit standing voting instructions requiring votes to be cast in accordance with third-party voting recommendations should consider, for purposes of Rule 14a-9, whether shareholders would be furnished with material information about the recommendations necessary to understand how their shares will be voted on a particular proposal at an upcoming meeting pursuant to the instructions. Two important factors that should be considered are whether shareholders will:
- receive the third-party voting recommendation on a particular proposal at no cost; and
- have sufficient opportunity after receiving the recommendation to override the vote to be cast pursuant to the standing voting instruction.
For example, the third party may provide its voting recommendation to the registrant at no cost and with sufficient time so the vote to be cast on a particular proposal pursuant to the instruction is disclosed in the registrant’s definitive proxy statement. Alternatively, the third party may agree with the registrant to provide the voting recommendation directly to shareholders at no cost and with sufficient time for shareholders to override the instruction by voting on the registrant’s proxy card for the meeting. [October 8, 2026]
Authored by
Broc Romanek