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 this morning:
1. There haven’t been any 14a-8(i)(1) letters – and there have been a total of forty Rule 14a-8(j) notifications.
2. Of these forty Rule 14a-8(j) notifications:
– Sixteen of these include basic procedural bases for exclusion
– Eight of these include (i)(10) “substantial implementation” arguments (in addition to other substantive arguments)
– Six 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)
– Six 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)
– One of these are based on (i)(3) “false and misleading” grounds and one is based on (i)(3) “false and misleading” grounds and (i)(6) “absence of power or authority” grounds
– There is one letter with a SEC response but no incoming letter
Authored by
Broc Romanek