Publications

During the 2016 proxy season, the Staff of the Division of Corporation Finance (the “Staff”) of the Securities and Exchange Commission (“SEC”) granted no-action relief to 36 issuers with regard to proxy access shareholder proposals on the ground that they had substantially implemented the proposal under Rule 14a-8(i)(10).  In each of these instances, the proxy access bylaw adopted by the company granted proxy access for holders of three percent of the company’s outstanding stock for at least three years, as requested by the shareholder proposal.  The Staff granted no-action relief despite the fact that in most of these cases, the company’s bylaws  differed from the shareholder proposal with regard to the number of shareholders who could be aggregated to form a group, the cap on the number of candidates who may be nominated pursuant to proxy access, and/or the specific disclosures and certifications required from nominating shareholders.  On July 21, 2016, for the first time, the Staff denied no-action relief under Rule 14a-8(i)(10) to a company that had adopted proxy access at the 3%/3-year thresholds.