Three federal district courts have issued the first substantive Rule 14a-8 rulings of the season with mixed results: two courts denied shareholder requests for injunctive relief, and one granted relief subject to a $20,000 bond. As a practical matter, two companies will file their 2026 proxies without the challenged proposals, while the third will include the proposal. None of the three, however, is a final merits decision; each reflects a court’s likelihood-of-success forecast, not a definitive ruling on excludability. Notably, all three decisions turned on Rule 14a-8(i)(7), the “ordinary business” basis, described by one court as a “perplexing” issue and by two courts as the “most perplexing” substantive exclusion ground. This alert walks through what the courts said, what they did not say, and what the rulings suggest for issuers still navigating exclusion decisions.
Continue Reading Rule 14a-8 Litigation Update: District Courts Weigh in on Shareholder Proposal Exclusions
SEC No-Action Relief Offers a Roadmap for Foreign-Incorporated Companies Caught Between Home-Country Law and U.S. Proxy Rules
On April 8, 2026, the SEC’s Division of Corporation Finance issued a no-action letter addressing a structural conflict that arises for companies incorporated in the Netherlands, listed on a U.S. exchange, but without foreign private issuer (FPI) status, leaving them fully subject to U.S. domestic proxy rules under Regulation 14A. The conflict stems from a timing mismatch: Dutch law fixes the record date at 28 days before a shareholder meeting, while Rule 14a-16(a) requires distributing the Notice of Internet Availability of Proxy Materials at least 40 calendar days out. A company could technically satisfy U.S. proxy rules by abandoning notice and access and instead mailing full printed sets of proxy materials, but for a company with a large, dispersed shareholder base, that approach is far more expensive and impractical. The Division of Corporation Finance granted relief so long as the company (i) files its definitive proxy statement and annual report with the SEC and posts them on its website at least 40 days before the meeting; (ii) issues a press release announcing the availability of materials, the planned notice distribution date, and how shareholders can request paper copies; and (iii) distributes notice cards within five business days after the record date. This framework for conditioned relief mirrors the framework that the Division of Corporation Finance applied in a substantially similar no-action letter to another Dutch-incorporated, U.S.-listed company without FPI status in April 2025. These letters continue a pattern of Division relief addressing home-country/U.S. proxy rule conflicts. In a January 2014 no-action letter, the Division of Corporation Finance granted no-action relief to a Curaçao-incorporated, U.S.-listed company without FPI status that permitted the company to bypass the preliminary proxy filing requirement under Rule 14a-6(a) for routine shareholder votes that Curaçao law mandated.
Continue Reading SEC No-Action Relief Offers a Roadmap for Foreign-Incorporated Companies Caught Between Home-Country Law and U.S. Proxy RulesCybersecurity in the Age of Cyber Warfare: Governance Reminders for Public Company Boards
Just a few days ago, a state-linked hacking group claimed responsibility for a disruptive cyberattack on a Fortune 500 medical technology company with no ransom demand and no negotiation, calling it retaliation for a U.S. military strike. The risk of this type of politically-motivated cyberattack may increase given the increasingly volatile geopolitical environment. To combat this, the President recently signed an executive order targeting cybercrime carried out by transnational criminal organizations, aimed at improving federal coordination in combatting cybercrime. Now is an important time for boards and management teams to focus on crisis and risk management, including durable operational resilience planning. This alert provides perspectives about current best practices on incident preparedness in the face of such threats, explains how this preparedness can be supplemented by an operational resilience framework, discusses the practical implications of the executive order, and lays out a governance hygiene checklist to guide your next cybersecurity oversight discussion.
Continue Reading Cybersecurity in the Age of Cyber Warfare: Governance Reminders for Public Company BoardsReframing Board Diversity Disclosure in 2026 Proxy Statements
Board diversity disclosure is undergoing a meaningful recalibration. After years of increasing pressure by shareholders and other stakeholders to increase the number of women and underrepresented minorities on boards and provide robust disclosure of board demographic information, the framework is now shifting. Following the U.S. Court of Appeals Fifth Circuit’s December 2024 decision to strike down the rule requiring Nasdaq-listed companies to include board diversity disclosure in their proxy statements, the Trump Administration’s targeting of DEI programs, and the related pullback from the major proxy advisory firms and institutional investors in their stewardship principles and voting guidelines, companies are now re-assessing how they define and describe the diversity of directors serving on their boards in their proxy statements. While companies continue to emphasize that their boards include directors with diverse skills, backgrounds, experiences and viewpoints, proxy statement disclosure increasingly frames diversity in broader terms instead of focusing primarily on protected classes.
Continue Reading Reframing Board Diversity Disclosure in 2026 Proxy StatementsLawsuits Filed Under SEC’s Revised Rule 14a-8 No-Action Letter Process
When the SEC announced changes to the Rule 14a-8 no-action letter process in November 2025, many observers—ourselves included—anticipated that some shareholder proponents might turn to litigation if companies excluded their proposals under the new framework. That anticipated litigation has now arrived. On February 17, 2026, two separate lawsuits were filed challenging company decisions to exclude shareholder proposals from their 2026 proxy materials. A third lawsuit followed just two days later, on February 19, 2026. These cases mark the earliest examples of litigation under this season’s revised Rule 14a-8 no-action letter process.
Continue Reading Lawsuits Filed Under SEC’s Revised Rule 14a-8 No-Action Letter ProcessThe NAL Landscape Post-SEC Announcement
I. Introduction
In November 2025, the Division of Corporate Finance (the “Staff”) of the Securities and Exchange Commission (the “SEC”) announced that it would no longer provide substantive responses to most no-action requests for shareholder proposals during this proxy season. Since this announcement (the “Announcement”), public companies have found themselves in uncharted territory. While companies may request a response from the Staff if they provide an unqualified representation that the company has a reasonable basis to exclude the proposal under Rule 14a-8, the Staff will only issue a no-action response based on that unqualified representation, and not based on any independent analysis of the merits of the arguments presented. Without the added assurance of the SEC’s substantive review, a number of companies have refreshed their strategic approach to no-action letters this proxy season. The exclusion notices[1] that have been submitted since the Announcement provide a glimpse into emerging trends regarding how companies and their legal counsel are interpreting the announcement and navigating this unguided landscape.
Continue Reading The NAL Landscape Post-SEC AnnouncementFiling Fees and the Fuss over FEPT
The Securities and Exchange Commission (the “SEC”) adopted the “Filing Fee Disclosure and Payment Methods Modernization Rule” on October 13, 2021, to “make the filing process faster, less expensive, and more efficient for SEC staff and market participants.” Over the last few years, the SEC has phased in various requirements of this rule. However, effective July 31, 2025, all filers are now required to be compliant.
Continue Reading Filing Fees and the Fuss over FEPTTo Arbitrate or Not to Arbitrate: The SEC Now Allows Companies to Choose
On September 17, 2025, the Securities and Exchange Commission (the Commission) voted 3-1 to issue a policy statement clarifying that the presence of a mandatory arbitration provision for investor claims arising under the federal securities laws in an issuer’s articles or certificate of incorporation, bylaws or any securities-related contractual agreements (Operating Documents) will not affect the Commission’s decision whether to accelerate the effectiveness of that issuer’s registration statement.[1] The statement marks a reversal of the Commission’s longstanding refusal to accelerate an issuer’s registration statement under these circumstances,[2] a position that has resulted in U.S. public companies generally not including mandatory arbitration provisions for federal securities law claims in their Operating Documents. As a result, these claims can and have historically been filed as class actions in federal courts.
Continue Reading To Arbitrate or Not to Arbitrate: The SEC Now Allows Companies to ChooseCalifornia Climate Rules: What To Do Pending the Ninth Circuit’s Injunction
On November 19, 2025, the California Air Resources Board (“CARB”) held a third working group session to present its implementing regulation proposals for SB 261 and SB 253. Shortly after the session started, the Ninth Circuit published an order that granted an injunction against the enforcement of SB 261, pending the ongoing appeal.
Continue Reading California Climate Rules: What To Do Pending the Ninth Circuit’s InjunctionSEC Announces Changes to Rule 14a-8 No-Action Letter Process
The SEC’s Division of Corporation Finance just announced that it will largely step back from the shareholder proposal no-action letter process for the current proxy season (October 1, 2025 – September 30, 2026). The Division cited three reasons: resource constraints following the recent government shutdown, a high volume of registration statements competing for staff attention, and the extensive existing body of guidance already available to companies and proponents. The announcement aligns with the deregulatory approach we flagged in September when discussing potential reforms to the shareholder proposal process under the current SEC.
Continue Reading SEC Announces Changes to Rule 14a-8 No-Action Letter Process