Ahead of this proxy season, Corp Fin issued this statement saying that it wouldn’t respond to no-action requests – at least until September 30, 2026 – unless a company is seeking relief under Rule 14a-8(i)(1), the “not a proper subject under federal or state law” exclusion basis for companies incorporated in Delaware. Companies are still required to notify the SEC and proponents of their intention to include under Rule 14a-8(j) – and the SEC has been posting these Rule 14a-8(j) notices on its website.
Courtesy of Cooley’s Michael Mencher, here are the stats of what the exclusion notices look like for this proxy season as of two days ago:
1. There haven’t been any 14a-8(i)(1) letters – and there have been a total of thirty Rule 14a-8(j) notifications.
2. Of these thirty Rule 14a-8(j) notifications:
– Fourteen of these include basic procedural bases for exclusion
– Seven of these include (i)(10) “substantial implementation” arguments (in addition to other substantive arguments)
– Three of these argue the (i)(11) “duplicate proposals” basis for exclusion
– One of these argue for a (i)(2) “violation of state law” (not the Delaware law (i)(1) argument)
– Five of the letters are based on substantive (i)(7) “ordinary business” grounds (as well as (i)(3) “false and misleading” in one case) – and a few of these don’t include lengthy arguments for their (i)(7) exclusions (see this one for example)
Authored by
Broc Romanek