SEC Announces It Will Not Respond to Most No-Action Requests for Rule 14a-8 Shareholder Proposals

Summary

This morning, the Division of Corporation Finance of the Securities and Exchange Commission announced that it will not respond to no-action requests for the exclusion of Rule 14a-8 shareholder proposals, other than no-action requests to exclude a proposal under Rule 14a-8(i)(1) (proper subject for action by shareholders).[1] The Division made this announcement after the end of a 43‑day U.S. federal government shutdown, citing “current resource and timing considerations following the lengthy government shutdown and the large volume of registration statements and other filings requiring prompt staff attention,” as well as “the extensive body of guidance” from the Commission and its Staff on Rule 14a‑8 proposals.

Key takeaways are:

• Applicability: The announcement applies to the current proxy season, which the Division defined as the period from October 1, 2025 to September 30, 2026. The announcement also applies to no-action requests received before October 1, 2025 to which the Division has not yet responded.
• Process for excluding proposals (other than under Rule 14a-8(i)(1)): Companies that intend to exclude shareholder proposals from their proxy materials must notify the Commission and proponents no later than 80 calendar days before filing a definitive proxy statement (the “Notification”). However, the Notification will be for information purposes only, and there is no requirement that companies seek the views of the Division’s Staff regarding their intended exclusion of a proposal. No response from the Division’s Staff will be required for excluding a Rule 14a-8 proposal this proxy season.
• Submission of the Notification: Companies must still submit the Notification through the online Shareholder Proposal Form in addition to sending a copy to the shareholder proponent(s).
• Content of the Notification: The Division states that the Notification should be limited to the information required by the applicable rule, as well as a representation as contemplated by the announcement (discussed in the following bullet) if a company is seeking to obtain a response from the Division Staff. The Staff will not express a view on the basis or bases the company intends to rely on in excluding the proposal.
• Process to Obtain a Response From the Division: Although no response from the Division’s Staff is required, if a company wishes to receive a response for any proposal, the company or its counsel must include “an unqualified representation that the company has a reasonable basis to exclude the proposal based on the provisions of Rule 14a-8, prior published guidance, and/or judicial decisions.” When a company includes this representation in its Notification, the Division will respond with a letter indicating that, based solely on the representation, the Division will not object if the company omits the proposal from its proxy materials. In responding to a Notification, the Division Staff will not evaluate the adequacy of the representation.

If a company has already submitted a no-action request prior to the date of the announcement and wishes to receive a response from the Division, it should submit a notice that includes the representation described above, which will be considered to be timely under Rule 14a-8(j) as long as the original no-action request was timely. 

• Process for Excluding Proposals Under Rule 14a-8(i)(1): As an exception to the new process described in the announcement, a company that is intending to exclude a shareholder proposal pursuant to Rule 14a-8(i)(1) will still need to follow the traditional no-action process this proxy season. Citing the recent speech by Chair Atkins, the Division has determined that it “will continue to review and express its views on no-action requests related to Rule 14a-8(i)(1) until such time as it determines there is sufficient guidance available to assist companies and proponents in their decision-making process.”

Implications for Market Participants

The impact of the Division’s announcement for companies intending to exclude Rule 14a-8 shareholder proposals this proxy season is not yet clear. Shareholder proponents also may adjust their approach in light of these developments, with the only remedy for the exclusion of a shareholder proposal following the announcement being litigation. In all cases, we recommend companies document in advance their bases for excluding any shareholder proposal, regardless of whether they seek a response from the Staff based on the representation described in the announcement.