SEC Division of Corporation Finance Announces That It Will Not Substantively Respond to Most Rule 14a-8 No-Action Requests for the Current Proxy Season

On November 17, 2025, the Securities and Exchange Commission (the SEC) Division of Corporation Finance (Corp Fin) issued a statement (the Statement) announcing that, with limited exceptions, it will not be responding to any requests for guidance on the excludability of shareholder proposals received by companies in connection with the 2026 proxy season (October 1, 2025 through September 30, 2026).¹

Shareholder Proposals and Rule 14a-8 Background

Rule 14a-8 under the Securities Exchange Act of 1934, as amended, establishes the processes by which (i) shareholders may submit proposals to be included in the proxy statement for a company’s annual or special meeting of shareholders and (ii) a company may seek to exclude such proposals from the proxy statement that fail to comply with Rule 14a-8’s procedural or subject matter requirements. A company seeking to exclude a shareholder proposal that does not comply with the requirements of Rule 14a-8 is required to, among other things, notify the SEC of its intent to exclude the proposal by following the procedures set forth in Rule 14a-8(j).

Although the SEC staff has a longstanding practice of concurring or not concurring with a company’s intended exclusion of the proposal, the SEC’s rules do not require the SEC staff to respond to a company’s notification.²

November 2025 Statement

According to the Statement, a company seeking to exclude a shareholder proposal from its proxy statement for the 2026 proxy season must still comply with the notice requirements of Rule 14a-8(j). Notice must be submitted to Corp Fin using its Shareholder Proposal Form. However, with the exception of exclusions pursuant to Rule 14a-8(i)(1) and requests for no-objection letters (which are discussed below), such notice will be considered “informational only,” and no substantive response from the SEC staff will be provided.

Exception for Exclusions Under Rule 14a-8(i)(1)

Notwithstanding the foregoing, the SEC staff will still respond to no-action requests from companies seeking to exclude shareholder proposals under Rule 14a-8(i)(1), which permits companies to exclude a shareholder proposal that is “not a proper subject for action by shareholders under the laws of the jurisdiction of the company’s organization.”

As discussed in our Fall 2025 Quarterly Newsletter, in an October 2025 speech SEC Chair Paul Atkins cast doubt on whether precatory shareholder proposals (which constitute nearly all shareholder proposals) are a “proper subject” for action by shareholders under Delaware law and thus excludable by companies pursuant to Rule 14a-8(i)(1). Chair Atkins expressed “high confidence” that the SEC would allow companies to exclude precatory shareholder proposals pursuant to
Rule 14a-8(i)(1) if they “obtain[] an opinion of counsel that the proposal is not a ‘proper subject’ for shareholder action under Delaware law.”

In light of this unsettled position, the Statement confirms that the SEC staff will “continue to review and express its views on no-action requests related to Rule 14a-8(i)(1) until such time as it determines there is sufficient guidance available to assist companies and proponents in their decision-making process.”

SEC Staff Will Provide Non-Substantive “No-Objection” Letters

Although the SEC staff will not be responding substantively to any requests for exclusion (except for those premised on
Rule 14a-8(i)(1)), the SEC staff will provide companies with a letter indicating that the SEC will not object to a company excluding a shareholder proposal from its proxy statement if the company includes in its notice pursuant to Rule 14a-8(j) 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.”

Because the Statement applies retroactively, companies that submitted no-action requests before the Statement was released (except for those premised on Rule 14a-8(i)(1)) will not receive a response from the SEC staff. However, companies that previously submitted no-action requests and that wish to receive a “no-objection” response from Corp Fin are encouraged to submit a notice that includes the representation described above. In those cases, the time of the initial submission will apply for purposes of the 80-day requirement in Rule 14a-8(j).

Response from SEC Commissioner Caroline Crenshaw

Commissioner Crenshaw, the only Democrat-appointed commissioner on the SEC, issued her own statement criticizing the Statement (particularly the process of issuing “no-objection” relief without substantive review of the underlying arguments) as a “giveaway to issuers” and “an act of hostility toward shareholders.”

Takeaways

In light of the Statement, companies that receive shareholder proposals during the 2026 proxy season should consider taking the following steps:

• Determine preferred course of action in response to shareholder proposals. Companies should promptly analyze any proposal received and the circumstances of its submission to consider whether any of the procedural or substantive bases for exclusion under Rule 14a-8 might apply. Other possible responses include negotiating a withdrawal of the proposal by the shareholder proponent or, where exclusion is not advisable, including the proposal in the company’s proxy statement. For precatory proposals, a company should also consider its appetite for pursuing exclusion on the basis outlined in Chair Atkins’ October 2025 speech. If a company decides to pursue this strategy or any other potential avenue for exclusion under Rule 14a-8(i)(1), the company should first engage counsel (including relevant state counsel) to determine whether seeking no-action relief under Rule 14a-8(i)(1) is advisable based on the company’s facts and circumstances.
  
  
• Research and document any bases for determining that a shareholder proposal is excludable under Rule 14a-8. If the company determines to exclude a shareholder proposal, it is prudent to document the steps taken in determining that exclusion of such proposal is warranted, including references to any applicable SEC staff guidance (including but not limited to Shareholder Proposals: Staff Legal Bulletin No. 14M (CF)), previously published no-action letters, and judicial opinions.
  
  
• Comfort through no-objection letter process. Although the SEC staff does not consider the “no-objection” letter provided in accordance with the Statement as a “substantive” response to a company’s notice that it intends to exclude a shareholder proposal, companies may still find that such a letter provides some degree of comfort from the risks related to excluding a shareholder proposal in cases where the proponent or other stakeholders disagree with the company’s assessment.
  
  
• Consider elevated litigation or reputational risk. If excluding the proposal would heighten the company’s litigation or reputational risk (either related to potential claims by the proponent(s) of the proposal or public perception related to the nature of the proposal), companies should balance the risks of exclusion against those of inclusion in the proxy statement.
  
  
• Engage investor relations and stewardship teams. The company should consider the potential for investor pushback (including the potential for negative recommendations from proxy advisors) arising from the exclusion of shareholder proposals without no-action relief. Companies should involve their teams responsible for shareholder engagement in order to give these teams time to prepare for any negative responses.

¹ The Statement also applies to no-action requests received before October 1, 2025 to which Corp Fin has not yet responded.

² Statement of Informal Procedures for the Rendering of Staff Advice with Respect to Shareholder Proposals, 41 Fed. Reg. 29989 (July 20, 1976).

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Shelly Heyduk, an O’Melveny partner licensed to practice law in California; Robert Plesnarski, an O’Melveny partner licensed to practice law in District of Columbia and Pennsylvania; Andra Troy, an O’Melveny partner licensed to practice law in New York; Aliza Cohen, an O’Melveny resource attorney licensed to practice law in California; Ashley Gust, an O’Melveny counsel licensed to practice law in New York and Washington; Chloe K. Keedy, an O’Melveny associate licensed to practice law in California; and Kate Jones, an O’Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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