Earlier this week, Corp Fin issued this statement saying that it won’t respond to no-action requests – at least until September 30, 2026 – unless a company is seeking relief under Rule 14a-8(i)(1). Companies are still required to notify the SEC and proponents of their intention to include under Rule 14a-8(j) – and one of the open questions was whether the SEC would be posting these Rule 14a-8(j) notices on their website.
The answer to that question seems like “yes” as it posted this 14a-8(j) notice and a Corp Fin response a few days ago. The notice was in response to a governance-related shareholder proposal, which had been subject to a pending no-action request that argued that the proposal should be excluded due to a violation of Rule 14a-8(e)(2)’s deadline. So the argument was procedural, not substantive.
Note that the company supplemented its no-action request with an unqualified representation that it had a reasonable basis to omit the proposal. In response, Corp Fin stated: “You represent that the Company has a reasonable basis to exclude the Proposal. Based solely on that representation, we will not object if the Company excludes the proposal from its proxy materials.”So the circumstances here are a little unique in that the company had already crafted a no-action request so making the “reasonable basis” representation would seem relatively easy, particularly for a procedural basis for exclusion…
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