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The Division of Corporate Finance (the Division) of the Securities and Exchange Commission (SEC) issued a statement on November 17, 2025, outlining its position on responding to no-action requests under Rule 14a-8, which deals with shareholder proposals. The Division stated that, given the volume of registration statements and other filings requiring prompt attention, combined with timing considerations following the government shutdown, the Division will not be responding to or express any view on a no-action request for shareholder proposals that a company plans on excluding from its proxy statement. However, the Division plans to continue responding to no-action requests to exclude a shareholder proposal under Rule 14a-8(i)(1). The SEC believes that there is still insufficient guidance on Rule 14a-8(i)(1), which deals with excluding shareholder proposals that are improper for shareholder action under state law.
Applicable Period
The announced position will apply to the (1) current proxy season (October 1, 2025, through September 30, 2026) and (2) no action requests received by October 1, 2025, where the Division has yet to respond.
Notification Obligation
- Although the Division will not respond to no-action requests pursuant to Rule 14a-8 (other than under Rule 14a-8(i)(1)), it advised and reminded companies of the obligation to notify the SEC and proponents of the exclusion of a shareholder proposal no later than 80 calendar days before filing a definitive proxy statement.
- As an exception, the Division will continue to review and respond to no-action requests related to Rule 14a-8(i)(1). Companies should continue to follow existing processes with respect to those requests made under Rule 14a-8(i)(1).
Unqualified Representation
- If a company wishes to receive a response from a no-action request to exclude a shareholder proposal pursuant to Rule 14a-8, other than Rule 14a-8(i)(1), the company must submit, along with its Rule 14(a)-8(j) notification, an unqualified representation that there is a reasonable basis to exclude the proposal based on:
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- Provisions of Rule 14a-8;
- Prior published guidance; or
- Judicial decisions.
- The Division will issue a letter solely based on the unqualified representation of the company and will not evaluate the adequacy or express a view on the unqualified representation. Responses to requests will not be binding on the SEC and will not prevent the SEC from taking enforcement action.
- If a company submitted a no-action request prior to the date of the announcement and wishes to receive a response, the company will need to resubmit a notification containing the unqualified representation as noted above.
The announcement has added uncertainty for companies and proponents of shareholder proposals for this proxy season. Since the sole remedy to exclusion of a proposal seems to be litigation, proponents may need to adjust their approach, and companies may become more aggressive with the exclusion of proposals.
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