A (Very) Early Look At No Action Letters Under Rule 14a-8

On November 17, 2025, the Divisions of Corporation Finance and Investment Management (together, the "Divisions") of the U.S. Securities and Exchange Commission (the "SEC") published a statement (the "Statement") regarding their respective reviews of requests to exclude shareholder proposals from annual proxy statements under Rule 14a-8 of the Securities Exchange Act of 1934, as amended, during the 2026 proxy season (read more here). Specifically, the Divisions stated that they would not respond to or express substantive views on requests to exclude shareholder proposals other than requests under Rule 14a-8(i)(1). In addition, the Statement provides that, if a company wishes to receive a response from the Divisions for any proposal that it intends to exclude pursuant to a basis other than Rule 14a-8(i)(1), 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." As detailed below, we are already seeing the impact on no action requests of this guidance, which is dramatically different from that in effect in the prior proxy season.

• To date, approximately 54 no action request letters from this proxy season are posted on the SEC's website. This includes 17 requests dated between August 17-November 13, 2025, prior to publication of the Statement, that did not request or receive a response from the Divisions, and eight requests dated prior to November 17 that were subsequently withdrawn. None of the letters includes a request to exclude a shareholder proposal under Rule 14a-8(i)(1).
• Following the Statement's publication, five companies that had previously submitted no action requests amended these requests to include the "reasonable basis to exclude" language required to receive a response from the Divisions.
• All but one of the no action requests submitted after the Statement was published include the "reasonable basis to exclude" language.
• There are approximately 25 no action requests currently posted on the SEC's website that include the "reasonable basis to exclude" language.¹ Seventeen (approx. 70%) of these letters include a variation on the following language, mirroring that suggested in the Statement: "the Company represents without qualification that it has a reasonable basis to exclude the Proposal based on the provisions of Rule 14a-8, prior published guidance and/or judicial decisions."
• The remaining eight letters generally reference the specific prong of Rule 14a-8 on which the company is relying to exclude, for example, "the Company believes it has a reasonable basis to exclude the Proposal pursuant to Rule 14a-8(i)(10)."
• The average incoming letter length prior to the Statement's publication was about 11 pages; the average incoming letter length after publication was approximately six pages. This change likely reflects that incoming letters include less detailed legal and procedural analysis under the new regime, perhaps due to the fact that the Divisions will not express substantive views in response to any such analysis.

Proxy season is just beginning. We will continue to monitor these issues, as well as other questions that have arisen in response to the Statement, as the season continues—stay tuned for updates on what remains an interesting time for companies, proponents and their counsel.

Footnotes

1. This includes a few letters that were initially submitted prior to November 17 and later amended to include the "reasonable basis to exclude" language.

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