SEC Alters Shareholder Proposal Landscape

On November 17, 2025, the Division of Corporation Finance (the “Division”) of the Securities and Exchange Commission (the “SEC”) issued a statement announcing a seismic change to its review of shareholder proposals for the current proxy season.  Citing the backlog of registration statements and filings made during the extended federal government shutdown and related resource and timing constraints, the Division announced that it will not be responding to (and will express no views on) no-action requests seeking to exclude shareholder proposals other than those argued as “improper under state law” under Rule 14a-8(i)(1).

The Division will continue to review no-action requests under Rule 14a-8(i)(1) due to recent developments leaving companies and proponents with insufficient guidance as to what is permissible to exclude.  Specifically, a footnote to the statement references a recent speech by Chairman Atkins implying that the staff would honor the position that there is “no fundamental right under Delaware law” for shareholders to vote on precatory proposals.  By contrast, the statement indicates that there exists an “extensive body of guidance from the Commission and the staff” regarding all other bases for exclusion under Rule 14a-8.

This change to the review of no-action requests does not change the existing requirement under Rule 14a-8(j) that a company notify the SEC and any proponent no later than 80 days prior to the filing of the company’s definitive proxy statement.  Those notices must be submitted to the Division using the SEC’s Shareholder Proposal Form.

While the Division will not engage in its ordinary course review of no-action requests for bases for exclusion other than Rule 14a-8(i)(1), the statement indicates that companies can still receive a response from the staff.  As part of a company’s Rule 14a-8(j) notification to the Division, if the company includes an “unqualified” statement 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,” the Division will provide an acknowledgement letter stating that, based solely on that representation, the Division will not object to the company’s decision to exclude the proposal from its proxy materials.  The Division further notes that in forming a reasonable basis to exclude a proposal, a company should not feel limited by a prior staff response indicating that it was unable to concur with a company’s argument for exclusion (or the absence of a prior staff response supporting a basis for exclusion).

The Division’s announcement applies to both the current proxy season (October 1, 2025 through September 30, 2026) and any no-action requests received prior to October 1, 2025 that are pending Division review.  The statement provides that the Division will continue reviewing no-action requests under Rule 14a-8(i)(1) until the Division determines that “sufficient guidance” exists to assist companies and proponents in their decision-making process.

If you have any questions regarding the SEC announcement or how a company should respond to a shareholder proposal received this proxy season, please contact any member of our Public Company Advisors Team or the Womble Bond Dickinson attorneys with whom you usually work.