Shareholder Proposals Relating to the Election of Directors, 70450-70456 [E7-23951]
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Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 / Rules and Regulations
SECURITIES AND EXCHANGE
COMMISSION
17 CFR Part 240
[Release No. 34–56914; IC–28075; File No.
S7–17–07]
RIN 3235–AJ95
Shareholder Proposals Relating to the
Election of Directors
Securities and Exchange
Commission.
ACTION: Final rule.
AGENCY:
SUMMARY: The Securities and Exchange
Commission is publishing this adopting
release to codify the meaning of Rule
14a–8(i)(8) under the Securities
Exchange Act of 1934. Rule 14a–8
provides shareholders with an
opportunity to place certain proposals
in a company’s proxy materials for a
vote at an annual or special meeting of
shareholders. Subsection (i)(8) of the
Rule permits exclusion of certain
shareholder proposals related to the
election of directors. The Commission is
adopting an amendment to Rule 14a–
8(i)(8) to provide certainty regarding the
meaning of this provision in response to
a recent court decision.
DATES: Effective Date: January 10, 2008.
FOR FURTHER INFORMATION CONTACT:
Lillian Brown or Tamara Brightwell, at
(202) 551–3700, in the Division of
Corporation Finance, U.S. Securities
and Exchange Commission, 100 F
Street, NE., Washington, DC 20549–
3010.
We are
adopting an amendment to Rule 14a–
8(i)(8) 1 under the Securities Exchange
Act of 1934.2
SUPPLEMENTARY INFORMATION:
I. Background
A. Purpose of the Rule 14a–8(i)(8)
Exclusion
On July 27, 2007, the Commission
published for comment the proposed
amendment to Rule 14a–8(i)(8) that we
are adopting today to address the
uncertainty resulting from a recent
decision of the U.S. Court of Appeals for
the Second Circuit that did not defer to
the agency’s longstanding interpretation
of the Rule.3
Rule 14a–8, which creates a
procedure under which shareholders 4
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1 17
CFR 240.14a–8(i)(8).
U.S.C. 78a et seq.
3 Release No. 34–56161 (July 27, 2007) [72 FR
43488] (the ‘‘Proposing Release’’).
4 To be eligible to submit a proposal, Exchange
Act Rule 14a–8(b)(1) (17 CFR 240.14a–8(b)(1))
requires the shareholder to have continuously held
at least $2,000 in market value, or 1%, of the
2 15
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may present certain proposals 5 in the
company’s proxy materials, does not
require the inclusion of any proposal
that ‘‘relates to an election for
membership on the company’s board of
directors or analogous governing
body.’’ 6 The proper functioning of Rule
14a–8(i)(8) is particularly critical to
assuring that investors receive adequate
disclosure in election contests, and that
they benefit from the full protection of
the antifraud provisions of the securities
laws. Because the inclusion of
shareholder nominees for director in a
company’s proxy materials normally
would create a contested election of
directors, the protections of the proxy
solicitation rules designed to provide
investors with full and accurate
disclosure are of vital importance in this
context. An interpretation of Rule 14a–
8(i)(8) that resulted in the Rule being
used as a means to include shareholder
nominees in company proxy materials
would, in effect, circumvent the other
proxy rules designed to assure the
integrity of director elections.
Several Commission rules, including
Exchange Act Rule 14a–12,7 regulate
contested proxy solicitations so that
investors receive adequate disclosure to
enable them to make informed voting
decisions in elections. The requirements
to provide these disclosures to
shareholders from whom proxy
authority is sought are grounded in Rule
14a–3,8 which requires that any party
conducting a proxy solicitation file with
the Commission, and furnish to each
person solicited, a proxy statement
containing the information specified in
Schedule 14A.9 Items 4(b) and 5(b) of
Schedule 14A require numerous
specified disclosures if the solicitation
is subject to Rule 14a–12(c).10 A
company’s securities entitled to be voted on the
proposal for at least one year. The Rule also
contains other eligibility and procedural
requirements for shareholders who wish to include
a proposal in the company’s proxy materials.
5 With respect to subjects and procedures for
shareholder votes, most state corporation laws
provide that a corporation’s charter or bylaws can
specify the types of proposals that are permitted to
be brought before the shareholders for a vote at an
annual or special meeting. Rule 14a–8(i)(1) supports
these determinations by providing that a proposal
that is not a proper subject for action by
shareholders under the laws of the jurisdiction of
the corporation’s organization may be excluded
from the corporation’s proxy materials.
6 Exchange Act Rule 14a–8(i)(8).
7 17 CFR 240.14a–12.
8 17 CFR 240.14a–3.
9 Rule 14a–3 provides, in pertinent part, that
‘‘[n]o solicitation subject to this regulation shall be
made unless each person solicited is concurrently
furnished or has previously been furnished with a
publicly-filed preliminary or definitive written
proxy statement containing the information
specified in Schedule 14A. * * *’’
10 17 CFR 240.14a–101, Items 4 and 5. Items 4 and
5 require disclosures made by participants in a
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solicitation is subject to Rule 14a–12(c)
if it is made ‘‘for the purpose of
opposing’’ a solicitation by any other
person ‘‘with respect to the election or
removal of directors. * * *’’ 11 Thus,
the result of Schedule 14A’s crossreferencing of Rule 14a–12(c) is to
trigger, when a solicitation with respect
to the election of directors is conducted
in opposition to another solicitation, a
number of disclosures relevant in proxy
contests.12 In addition, Item 7 of
Schedule 14A 13 requires the furnishing
of additional information as to
nominees for director, including
nominees of ‘‘persons other than the
solicitation. For purposes of Items 4 and 5, a
‘‘participant’’ in the solicitation includes:
• Any person who solicits proxies;
• Any director nominee for whose election
proxies are being solicited; and
• Any committee or group, any member of a
committee or group, and other persons involved in
specified ways in the financing of the solicitation.
See Item 4, Instruction 3. Thus, for each of the
numerous disclosures required as to a
‘‘participant,’’ the information must be disclosed as
to all of such persons.
11 Because numerous protections of the federal
proxy rules are triggered only by the presence of a
solicitation made in opposition to another
solicitation, the requirements regarding disclosures
and procedures in contested elections do not
contemplate the presence of competing nominees in
the same proxy materials.
12 See 17 CFR 240.14a–101, Items 4(b) and 5(b).
These disclosures include:
• By whom the solicitation is made;
• The methods to be employed to solicit;
• Total expenditures to date and anticipated in
connection with the solicitation;
• By whom the cost of the solicitation will be
borne;
• Any substantial interest of each participant in
the solicitation;
• The name, address, and principal occupation or
principal business of each participant;
• Whether any participant has been convicted in
a criminal proceeding within the past 10 years;
• The amount of each class of securities of the
company owned by the participant and the
participant’s associates;
• Information concerning purchases and sales of
the company’s securities by each participant within
the past two years;
• Whether any part of the purchase price or
market value of such securities is represented by
funds borrowed;
• Whether a participant is a party to any contract,
arrangements or understandings with any person
with respect to securities of the company;
• Certain related party transactions between the
participant or its associates and the company;
• Whether the participant or any of its associates
have any arrangement or understanding with any
person with respect to any future employment with
the company or its affiliates, or with respect to any
future transactions to which the company or its
affiliates will or may be a party; and
• With respect to any person who is a party to
an arrangement or understanding pursuant to which
a nominee is proposed to be elected, any substantial
interest that such person has in any matter to be
acted upon at the meeting.
13 17 CFR 240.14a–101, Item 7.
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[company]’’ (e.g., shareholders),
including:
• Any arrangement or understanding
between the nominee and any other
person(s) (naming such person(s))
pursuant to which the nominee was or
is selected as a nominee; 14
• Business experience of the
nominee; 15
• Any other directorships held by the
nominee in an Exchange Act reporting
company; 16
• The nominee’s involvement in
certain legal proceedings; 17
• Certain transactions between the
nominee and the company; 18 and
• Whether the nominee complies
with independence requirements.19
Finally, and of critical importance, all of
these disclosures are covered by the
prohibition contained in Rule 14a–9 on
the making of a solicitation containing
false or misleading statements or
omissions.20
These numerous protections of the
federal proxy rules are triggered only by
the presence of a solicitation made in
opposition to another solicitation.
Accordingly, were the election
exclusion not available for proposals
that would establish a process for the
election of directors that circumvents
the proxy disclosure rules, it would be
possible for a person to wage an election
contest without providing the
disclosures required by the
Commission’s present rules governing
such contests. Additionally, false and
misleading disclosure in connection
with such an election contest could
potentially occur without liability under
Exchange Act Rule 14a–9 for material
misrepresentations made in a proxy
solicitation. The Commission stated this
rationale for the exclusion at the time it
was proposed in 1976:
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[T]he principal purpose of [Rule 14a–
8(i)(8)] is to make clear, with respect to
corporate elections, that Rule 14a–8 is not the
proper means for conducting campaigns or
effecting reforms in elections of that nature,
since other proxy rules, including Rule 14a–
14 See Item 401(a) of Regulation S–K [17 CFR
229.401(a)], which is referenced in Item 7 of
Schedule 14A.
15 See Item 401(e)(1) of Regulation S–K [17 CFR
229.401(e)(1)], which is referenced in Item 7 of
Schedule 14A.
16 See Item 401(e)(2) of Regulation S–K [17 CFR
229.401(e)(2)], which is referenced in Item 7 of
Schedule 14A.
17 See Items 103 and 401(f) of Regulation S–K [17
CFR 229.103 and 17 CFR 229.401(f)], which are
referenced in Item 7 of Schedule 14A.
18 See Item 404 of Regulation S–K [17 CFR
229.404], which is referenced in Item 7 of Schedule
14A.
19 See Item 407(a) of Regulation S–K [17 CFR
229.407(a)], which is referenced in Item 7 of
Schedule 14A.
20 See 17 CFR 240.14a–9.
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11, are applicable thereto.21 (Emphasis
added.)
Accordingly, the staff has determined
that shareholder proposals that may
result in a contested election—including
those which establish a procedure to list
shareholder-nominated director
candidates in the company’s proxy
materials—fall within the election
exclusion. We agree with this position
and believe it is consistent with the
explanation that the Commission gave
in 1976.
As explained in the Proposing
Release, except for a few brief references
to the Rule, the Commission did not
discuss the meaning of Rule 14a–8(i)(8)
from the time of its 1976 statement until
its shareholder access proposal in
October 2003,22 and the two proposing
releases 23 in July 2007. Between 1976
and the time of the AFSCME v. AIG
litigation, the staff of the Commission
took ‘‘no-action’’ positions on the
application of the Rule. Between 1976
and 1990, in applying the Rule to
proposals that would have established
procedures for shareholders to nominate
candidates to the board, in the limited
number of cases that presented the
question, the staff did not concur with
companies that the proposals could be
excluded under the election
exclusion.24 In 1990, however, without
mentioning the pre-1990 decisions, the
staff clearly stated its position that the
Rule permitted exclusion of a proposal
that ‘‘would establish a procedure that
may result in contested elections to the
board’’ in a response to a request for noaction relief from Amoco.25 In doing so,
21 Release No. 34–12598 (July 7, 1976) [41 FR
29982]. The Commission’s reference in its 1976
statement to ‘‘other proxy rules, including Rule
14a–11,’’ reflects the fact that, in 1976, Rule 14a–
11 was the Commission proxy rule governing
election contests. As part of a series of rule changes
in 1999, the Commission rescinded Rule 14a–11
and moved many of the requirements of prior Rule
14a–11 to the current Rule 14a–12. [17 CFR
240.14a–12] See Release No. 33–7760 (October 22,
1999) [64 FR 61408]. Accordingly, the
Commission’s reference to Rule 14a–11 in 1976 was
to the rules governing election contests, which now
may be found generally elsewhere in the proxy
rules and, in particular, in Rule 14a–12.
22 Release No. 34–48626 (October 14, 2003) [68
FR 60784].
23 See Proposing Release and Release No. 34–
56160 (July 27, 2007) [72 FR 43466].
24 The proposals submitted between 1976 and
1990 typically presented similar, but not identical,
procedures as those presented in the direct access
proposals generally submitted in recent years. See,
e.g., Pan Am Corp. (March 22, 1985); Union Oil
Company (February 24, 1983); and Mobil Corp.
(March 3, 1981). Cf. Tylan Corporation (September
25, 1987) (allowing exclusion under the prior
version of Rule 14a–8(i)(8) of a shareholder
proposal to reduce the number of directors and
nominate a new slate of directors meeting certain
criteria).
25 Amoco Corporation (February 14, 1990). See
also Thermo Electron (March 22, 1990); Unocal
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the staff aligned its interpretation with
the Commission’s 1976 statement.
Between 1990 and 1998, the staff
granted no-action relief under the
election exclusion nine times 26 and
denied relief twice 27 to operating
companies seeking to exclude
shareholder proposals to adopt
procedures that would give
shareholders the ability to nominate
director candidates in the company’s
proxy materials. For the past decade,
since 1998, the Commission staff has
repeatedly taken the position that
shareholder proposals that may result in
a contested election fall within the
election exclusion. On several occasions
after 1990, the Commission itself
declined to review these ‘‘no-action’’
positions.28
B. Background Relating to Rule
Amendment
In American Federation of State,
County & Municipal Employees,
Employees Pension Plan v. American
International Group, Inc.,29 the U.S.
Court of Appeals for the Second Circuit
held that AIG could not rely on Rule
14a–8(i)(8) to exclude a shareholder
proposal seeking to amend the
company’s bylaws to establish a
procedure under which the company
would be required, in specified
circumstances, to include shareholder
nominees for director in the company’s
proxy materials.30 The Second Circuit
described the Commission’s statement
in 1976 as limiting the election
exclusion ‘‘to shareholder proposals
used to oppose solicitations dealing
with an identified board seat in an
Corp. (February 6, 1990); and Bank of Boston
(January 26, 1990).
26 See Storage Technology Corporation (March 11,
1998); BellSouth Corp. (February 4, 1998); Unocal
Corporation (February 8, 1991); AT&T (January 11,
1991); Flow International (July 16, 1990); Thermo
Electron (March 22, 1990); Amoco Corporation
(February 14, 1990); Unocal Corporation (February
6, 1990) and Bank of Boston (January 26, 1990). See
also International Business Machine Corporation
(March 4, 1992), in which the staff noted that the
proposal would be excludable unless modified as
specified in the staff’s response letter.
27 See Dravo Corporation (February 21, 1995) and
Pinnacle West Capital Corporation (March 26,
1993). See also, TCW/DW Term Trust 2003 (July 15,
1997), in which the Division of Investment
Management denied no-action relief.
28 See, e.g., Storage Technology Corporation,
letter of Jonathan Katz, Secretary of the
Commission, to Dr. Seymour Licht P.E. (April 6,
1998).
29 462 F.3d 121 (2d Cir. 2006) (AFSCME v. AIG).
30 Consistent with the longstanding
interpretation, the Commission staff had issued to
AIG a letter stating that ‘‘[t]here appears to be some
basis for your view that AIG may exclude the
proposal under rule 14a–8(i)(8) * * * we will not
recommend enforcement action to the Commission
if AIG omits the proposal from its proxy materials
* * *.’’ American International Group (February
14, 2005).
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upcoming election and reject[ing] the
somewhat broader interpretation that
the election exclusion applies to
shareholder proposals that would
institute procedures making such
election contests more likely.’’ 31 After
1976, in the Second Circuit’s view, the
Commission gradually shifted away
from this interpretation, and came to its
present interpretation in 1990. The
court then held ‘‘that an agency’s
interpretation of an ambiguous
regulation made at the time the
regulation was implemented or revised
should control unless that agency has
offered sufficient reasons for its changed
interpretation.’’ 32 Finding no such
sufficient reason, the court declined to
defer to what it viewed as the 1990
interpretation and deemed it
‘‘appropriate’’ instead to defer to its own
reading of the meaning of the 1976
interpretation.33 It is the Commission’s
position that the election exclusion
should not be, and was not originally
intended to be, limited in this way.34
This decision was issued on
September 5, 2006, as companies and
shareholders prepared for the 2007
proxy season. Although the decision is
binding only within the Second Circuit,
it created uncertainty in the rest of the
nation about the continuing validity of
the longstanding interpretation of Rule
14a–8(i)(8). While the Commission
began the process that led to the current
rulemaking to clarify the Rule’s
application, the staff of the Division of
Corporation Finance received three noaction requests seeking to exclude
similar proposals under Rule 14a–
8(i)(8). The staff took a position of ‘‘no
view’’ on the one request for no-action
relief under the Rule that it received and
that was not withdrawn.35 This request
for no-action relief was submitted by
Hewlett-Packard Company, which
asserted that any litigation related to the
proposal would be handled by the U.S.
Court of Appeals for the Ninth Circuit
and that the staff therefore should grant
no-action relief under Rule 14a–8(i)(8)
on the basis that it was consistent with
the agency’s interpretation of the Rule
and the Ninth Circuit was not bound by
the decisions of the Second Circuit.
v. AIG, 432 F.3d at 128.
at 123.
33 Id. at 129.
34 In this regard, we note that the Second Circuit
decision stated that ‘‘if the SEC determines that the
interpretation of the election exclusion embodied in
its 1976 Statement would result in a decrease in
necessary disclosures or any other undesirable
outcome, it can certainly change its interpretation
of the election exclusion, provided that it explains
its reasons for doing so.’’ Id. at 130.
35 Hewlett-Packard Company (January 22, 2007),
available at http://www.sec.gov/divisions/corpfin/
cf-noaction/2007/hp012207-14a-8.htm.
Hewlett-Packard ultimately included
the proposal in its proxy materials, but
the proposal did not receive a majority
of shareholder votes. A second request
for no-action relief was submitted by
Reliant Energy. Subsequent to the staff
of the Division of Corporation Finance
taking a ‘‘no view’’ position on HewlettPackard’s request, Reliant Energy filed a
complaint in the U.S. District Court for
the Southern District of Texas seeking a
declaratory judgment that the company
could properly omit a similar proposal
that it had received for inclusion in its
proxy materials.36 During the pendency
of this litigation and prior to the staff’s
response to Reliant’s no-action request,
the shareholder withdrew the proposal
and the company therefore withdrew its
no-action request.37 A third request for
no-action relief was withdrawn after the
company agreed to include the proposal
in its proxy materials.38 These events
demonstrate the uncertainty the Second
Circuit decision created.
Compounding this uncertainty
created by the Second Circuit’s decision
is the U.S. Supreme Court’s recent
unanimous reversal of another Second
Circuit decision involving an agency’s
interpretation of its rules. In Long Island
Care at Home, Ltd. v. Coke,39 the
Supreme Court addressed the validity of
the Department of Labor’s changed
interpretation of its rules. As in
AFSCME v. AIG, the Second Circuit
declined to follow the agency’s more
recent interpretation. In rejecting the
Second Circuit’s view, the Supreme
Court held that an agency’s
interpretation of its own regulations is
controlling unless plainly erroneous or
inconsistent with the regulations being
interpreted. The Supreme Court noted
that the Department of Labor ‘‘may have
interpreted these regulations differently
at different times in their history.’’40
Nonetheless, ‘‘as long as interpretive
changes create no unfair surprise * * *
the change in interpretation alone
presents no separate ground for
disregarding the Department’s present
interpretation.’’41 Indeed, whereas the
Second Circuit required the
Commission to provide ‘‘sufficient
reason’’ for what it regarded as a
changed interpretation in order to merit
31 AFSCME
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32 Id.
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36 The Reliant complaint may be found at http://
www.sec.gov/divisions/corpfin/cf-noaction/2007/
reliantenergy011607-14a-8-incoming.pdf.
37 Reliant Energy, Inc. (February 23, 2007),
available at http://www.sec.gov/divisions/corpfin/
cf-noaction/2007/reliantenergy011607-14a-8incoming.pdf.
38 UnitedHealth Group Inc. (March 29, 2007),
available at http://www.sec.gov/divisions/corpfin/
cf-noaction/2007/uhg032907-14a-8.htm.
39 127 S.Ct. 2339 (2007).
40 Long Island Care at Home, 127 S.Ct at 2349.
41 Id.
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deference, the Supreme Court, in
reversing the Second Circuit’s decision
in another administrative law case, held
that a department’s change in
interpretation alone presents no
separate ground for disregarding the
department’s present interpretation. As
a result of this post-AFSCME v. AIG
decision, which binds all U.S. Courts of
Appeals and other federal courts, it is
more likely that a court would uphold
this agency’s interpretation of Rule 14a–
8(i)(8). If a lower court were to apply the
reasoning in Long Island Care at Home
and reach a result contrary to the
AFSCME v. AIG court, further litigation
and confusion about the Commission’s
rules could follow.
To permit this escalating state of
confusion to continue for the 2008
proxy season and beyond would
effectively require shareholders and
companies to go to court to determine
the meaning of the Commission’s proxy
rules, and it could take years before the
U.S. Supreme Court resolved any
resulting conflicts between the circuits.
Inaction by the Commission would thus
promote further uncertainty and leave
both shareholders and companies in a
position of ‘‘every litigant for himself.’’
This would benefit neither shareholders
nor companies. If the current
environment was permitted to continue,
and these types of proposals were
included in proxy statements and
subsequently approved, shareholders
would be exposed to the risk that the
disclosure provisions of the securities
laws could be circumvented. And by
furthering legal uncertainty about the
meaning and application of the
Commission’s rules, it would impose
needless costs on shareholders and
companies alike, and undermine the
Commission’s statutory mission to
protect investors, promote fair and
orderly markets and facilitate capital
formation.
The Commission has a fundamental
responsibility to make sure that the
rules and regulations it adopts have
clear meaning so that the regulated
community can conform its conduct
accordingly. To that end, we previously
reiterated the Commission’s
interpretation in the Proposing Release,
and today we are adopting a clear and
concise amendment to the text of Rule
14a–8 that codifies the agency’s
longstanding interpretation of Rule 14a–
8(i)(8). It is our intention that this will
enable shareholders and companies to
know with certainty whether a proposal
may or may not be excluded under Rule
14a–8(i)(8). It also will facilitate the
staff’s efforts in reviewing no-action
requests and in interpreting Rule 14a–8
with certainty in responding to requests
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for no-action letters during the 2008
proxy season. We believe it is important
to adopt a rule change to eliminate any
uncertainty, particularly in light of Long
Island Care at Home and its
implications. Thus, today’s release
codifies the agency’s longstanding
interpretation of Rule 14a–8(i)(8) and
the modifications to the rule we adopt
today do not affect or address any other
aspect of the staff’s prior determinations
under the election exclusion.
II. Commission Interpretation of Rule
14a–8(i)(8)
Rule 14a–8(i)(8) permits exclusion of
a proposal that would result in an
immediate election contest (e.g., by
making or opposing a director
nomination for a particular meeting) or
would set up a process for shareholders
to conduct an election contest in the
future by requiring the company to
include shareholders’ director nominees
in the company’s proxy materials for
subsequent meetings.
In the AFSCME v. AIG opinion, the
Second Circuit took the view that a
shareholder proposal may be excluded
under Rule 14a–8(i)(8) if it would result
in an immediate election contest, but
that a proposal may not be excluded
under Rule 14a–8(i)(8) if it
‘‘establish[es] a process for shareholders
to wage a future election contest.’’ 42 As
the Commission stated in 1976,
however, the express purpose of the
election exclusion is to make clear that
Rule 14a–8 is not a proper ‘‘means’’ to
achieve election contests because ‘‘other
proxy rules’’ are applicable to such
contests. We are acting today to state
clearly that the phrase ‘‘relates to an
election’’ in the election exclusion
cannot be read so narrowly as to refer
only to a proposal that relates to the
current election, or a particular election,
but rather must be read to refer to a
proposal that ‘‘relates to an election’’ in
subsequent years as well. In this regard,
if one looked only to what a proposal
accomplished in the current year, and
not to its effect in subsequent years, the
purpose of the exclusion could be
evaded easily. For example, such a
reading might permit a company to
exclude a shareholder proposal that
nominated a candidate for election as
director for the upcoming meeting of
shareholders, but not exclude a proposal
that resulted in the company being
required to include the same
shareholder-nominated candidate in the
company’s proxy materials for the
following year’s meeting.
Our interpretation of Rule 14a–8(i)(8)
is fully consistent with the
42 AFSCME
v. AIG, 462 F.3d at 128.
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Commission’s statement in 1976, that
the Rule was not intended ‘‘to cover
proposals dealing with matters
previously held not excludable by the
Commission, such as cumulative voting
rights, general qualifications for
directors * * *.’’ The Commission’s
references in 1976 to proposals relating
to ‘‘cumulative voting rights’’ and
‘‘general qualifications for directors’’
simply reflect the long-held belief that
these proposals generally do not trigger
the contested elections proxy rules and
therefore are not excludable under Rule
14a–8(i)(8). Accordingly, the
Commission’s 1976 statement should
not be interpreted to mean that Rule
14a–8(i)(8) permits exclusion of
proposals establishing nomination or
election procedures other than those
that would result in a contested
election. It also is consistent with the
Commission’s statement in 1976 that
Rule 14a–8 is not the proper means for
conducting campaigns or effecting
reforms in corporate elections. As
explained in the Proposing Release and
above, the analysis under Rule 14a–
8(i)(8) does not focus on whether the
proposal would make election contests
more likely, but whether the resulting
contests would be governed by the
Commission’s proxy rules for contested
elections.
We received numerous public
comments regarding the Proposing
Release, and have carefully considered
them. Commenters supporting the
agency’s longstanding interpretation
noted that, notwithstanding the court
decision, no new facts or circumstances
exist that warrant the Commission
deviating from that interpretation.43
Commenters believed that the court
decision did not invalidate the agency’s
position, but rather required the
Commission to state its position and its
reasoning in a formal way.44 Other
commenters disagreed with the
Commission’s position entirely and
therefore opposed the longstanding
interpretation and the proposed Rule
text amendment.45 Some commenters
opposing the interpretation and Rule
proposal believed that the Commission
43 See comment letters from U.S. Chamber of
Commerce (‘‘Chamber’’) and Society of Corporate
Governance Professionals (‘‘SCSGP’’).
44 See comment letter from Citigroup Inc.
(‘‘Citigroup’’). See, e.g., comment letters from The
Adams Express Company (‘‘Adams’’) and Chamber.
45 See, e.g., comment letters from AFL–CIO;
American Federation of State, County and
Municipal Employees, AFL–CIO (‘‘AFSCME’’);
State Board of Administration of Florida (‘‘FL
Board’’); Amalgamated Bank LongView Funds
(‘‘Amalgamated Bank’’); Board of Fire and Police
Pension Commissioners of the City of Los Angeles
(‘‘LA Fire & Police’’); and Comptroller of the City
of New York (‘‘NYC Comptroller’’).
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should withhold action until it has the
opportunity to assess the impact of the
AFSCME v. AIG decision.46
Many of the comments we received
on the amendment that we are adopting
today went beyond the limited issue the
Proposing Release sought to address—
namely, the Commission’s
interpretation of existing Rule 14a–
8(i)(8) and proposed rule amendment—
and instead focused on the broader
range of matters implicated by a
separate companion release (the
‘‘Companion Release’’) that proposed a
comprehensive package of amendments
to the proxy rules and related disclosure
requirements.47 We separately proposed
the amendment that we are adopting
today so that we could eliminate the
uncertainty created by AFSCME v. AIG.
As discussed throughout the Proposing
Release, and in this release, we believe
that a definitive codification of our
longstanding interpretation is both
needed and appropriate. We appreciate
the thoughtful comments regarding the
questions raised in the Companion
Release but, because they go beyond the
scope of the Proposing Release, they are
more appropriately addressed in
connection with the Companion
Release. In this release, we are acting
only on the matters that were the subject
of the Proposing Release.
III. Amendment to Rule 14a–8(i)(8)
The amendment that we are adopting
today is intended to clarify the meaning
of Rule 14a–8(i)(8) by codifying the
agency’s longstanding interpretation of
the Rule. The text of Rule 14a–8(i)(8)
currently specifies that a proposal may
be excluded ‘‘[i]f the proposal relates to
an election for membership on the
company’s board of directors or
analogous governing body.’’ To clarify
the meaning of this provision,
consistent with the Commission’s
longstanding interpretation, we
proposed to amend the language of the
rule to read:
If the proposal relates to a nomination or
an election for membership on the company’s
board of directors or analogous governing
body or a procedure for such nomination or
election.
46 See
Form Letter B.
received approximately 8800 comment
letters addressing the rule proposal and
accompanying interpretation. Approximately 8400
of these letters were form letters opposing both this
release and the Companion Release published for
comment on July 25. Of the 8800, approximately
400 were not form letters.
As discussed in more detail in the Companion
Release, those proposals followed a long history of
prior Commission consideration and examination of
possible regulatory approaches to shareholder
nominations of directors, including several prior
proposals, hearings, and roundtables. See Release
No. 34–56160 (July 27, 2007) [72 FR 43466].
47 We
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The term ‘‘procedures’’ in the election
exclusion relates to procedures that
would result in a contested election
either in the year in which the proposal
is submitted or in any subsequent year.
Commenters that addressed whether
further clarification of the meaning of
the election exclusion was necessary
thought an amendment to Rule 14a–
8(i)(8) was appropriate.48 Commenters
that supported the amendment believed
that it would eliminate the uncertainty
caused by the decision in AFSCME v.
AIG.49 Many commenters opposing the
amendments addressed the matters that
are the subject of the Companion
Release. Some, for example, argued that
the Commission’s proxy rules should
facilitate shareholders’ ability to
nominate directors.50 Several
commenters, some opposing the
interpretation and rule amendment
altogether and others supporting the
interpretation and rule amendment,
believed that the proposed language was
too broad.51 They asserted that under
the proxy rules shareholders have been
allowed to include proposals that may
make contested elections more likely,
such as proposals to de-stagger the
board or introduce cumulative voting.52
One commenter stated that any final
rule should not inadvertently overrule
other positions on shareholder
proposals that the staff has taken.53
Several commenters recommended that
the rule define the term ‘‘procedure’’ or
contain a note that provides a list of
circumstances that would constitute a
proposal that may result in an election
contest.54 Other commenters believed
that listing the procedures that the staff
historically has found to fall under the
exclusion is unnecessary and may result
in confusion because it would be
difficult to draft a comprehensive list
that includes every possible
permutation.55
48 See, e.g., comment letters from Business
Roundtable (‘‘BRT’’) and SCSGP.
49 See, e.g., comment letters from American Bar
Association (‘‘ABA’’); Adams; Bank of America
(‘‘BOA’’); The Boeing Company (‘‘Boeing’’); BRT;
Burlington Northern Santa Fe Corporation
(‘‘Burlington Northern’’); Caterpillar Inc.
(‘‘Caterpillar’’); Chevron Corporation (‘‘Chevron’’);
Peabody Energy Corporation (‘‘Peabody’’); and
SCSGP.
50 See, e.g., Form Letter B and comment letters
from Stephen R. Van Winthrop (‘‘Van Winthrop’’)
and Group of Thirty-Nine Law Professors (‘‘ThirtyNine Law Professors’’).
51 See, e.g., comment letters from ABA; Corporate
Governance; theRacetotheBottom.org (‘‘Race’’); and
Sullivan & Cromwell (‘‘Sullivan’’).
52 See, e.g., comment letters from Race and
Sullivan.
53 See comment letter from Amalgamated Bank.
54 See, e.g., comment letters from BRT and
Peabody.
55 See, e.g., comment letters from ABA and
SCSGP.
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As discussed above, we agree with
those commenters that support
amending Rule 14a–8(i)(8) in order to
provide greater clarity to both
shareholders and companies, and
believe that the comments that address
the broader issues in the Companion
Release go beyond the scope of this
release. We believe that the clarifying
rule amendment is consistent with the
agency’s longstanding interpretation of
the election exclusion and that the
references to ‘‘nomination’’ and
‘‘procedure’’ in the rule text
appropriately reflect the purpose of the
exclusion. We have not included in the
amended rule text a list of the specific
types of proposals that may be
excluded, as was suggested by some
commenters, as we agree with
commenters who asserted that inclusion
of such a list is unnecessary and could
be confusing. We therefore are adopting
the change to the rule text as proposed.
To meet some of the concerns expressed
by commenters, however, we emphasize
that the changes to the rule text relate
only to procedures that would result in
a contested election, either in the year
in which the proposal is submitted or in
subsequent years. The changes to the
rule text do not affect or address any
other aspect of the agency’s prior
interpretation of the exclusion.56 Thus,
under the Rule as amended, a
shareholder proposal that would allow
for shareholder use of the company’s
proxy materials to nominate director
56 For example, we note that, as stated in the
Proposing Release, the staff has taken the position
that a proposal relates to ‘‘an election for
membership on the company’s board of directors or
analogous governing body’’ and, as such, is subject
to exclusion under Rule 14a–8(i)(8) if it could have
the effect of, or proposes a procedure that could
have the effect of, any of the following:
• Disqualifying board nominees who are standing
for election;
• Removing a director from office before his or
her term expired;
• Questioning the competence or business
judgment of one or more directors; or
• Requiring companies to include shareholder
nominees for director in the companies’ proxy
materials or otherwise resulting in a solicitation on
behalf of shareholder nominees in opposition to
management-chosen nominees.
Conversely, the staff has taken the position that
a proposal may not be excluded under Rule 14a–
8(i)(8) if it relates to any of the following:
• Qualifications of directors or board structure
(as long as the proposal will not remove current
directors or disqualify current nominees);
• Voting procedures (such as majority or
plurality voting standards or cumulative voting);
• Nominating procedures (other than those that
would result in the inclusion of a shareholder
nominee in company proxy materials); or
• Reimbursement of shareholder expenses in
contested elections.
These lists represent non-exclusive examples of
types of proposals that the staff has found to be
excludable and non-excludable under the election
exclusion.
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candidates, such as the proposal at issue
in AFSCME v. AIG, would be
excludable. We believe the actions we
are taking today will provide certainty
in the application of Rule 14a–8(i)(8)
and will preserve our longstanding
interpretation of the Rule.
We believe that the amendment we
are adopting today, as well as the
definitive interpretive guidance
provided in this release, will provide
certainty to shareholders and companies
regarding the application of Rule 14a–
8(i)(8).57 The clarification provided will
enable shareholders and companies to
better understand the shareholder
proposal process, and will facilitate the
efforts of the Commission’s staff in its
review of future no-action requests.
IV. Paperwork Reduction Act
The proxy rules constitute a
‘‘collection of information’’ requirement
within the meaning of the Paperwork
Reduction Act of 1995, the PRA.58 The
amendment to Rule 14a–8(i)(8)
described in this release relates to a
previously approved collection of
information, the title of which is ‘‘Proxy
Statements—Regulation 14A
(Commission Rules 14a–1 through 14a–
16 and Schedule 14A)’’ (OMB Control
No. 3235–0059). This regulation was
adopted pursuant to the Exchange Act
and sets forth the disclosure
requirements for proxy statements filed
by companies to help investors make
informed voting decisions.
The Rule 14a–8(i)(8) amendment
merely revises the text of Rule 14a–
8(i)(8) in a manner that is consistent
with the agency’s longstanding
interpretation of the rule. As such, the
amendment does not affect the Schedule
14A collection of information for
purposes of the PRA. Therefore, we are
not submitting the amendment for OMB
approval.
V. Cost-Benefit Analysis
The amendment to Rule 14a–8(i)(8)
clarifies the Commission’s existing
57 The approach we are taking today is similar to
the Commission’s response to the decision of the
Third Circuit in Levy v. Sterling Holding Co., 314
F.3d 106 (3d Cir. 2002), which also resulted in
uncertainty and confusion about the interpretation
of Commission rules. See 69 FR 35982 (June 25,
2004) (proposing release), 70 FR 46080 (August 9,
2005) (adopting release); Bruh v. Bessemer Venture
Partners III L.P., 464 F.3d 202 (2d Cir. 2006)
(accepting Commission interpretation of rule before
amendment based on Commission’s amicus brief in
the case and the rule amendments and observing
that the amended rule was valid); Levy v. Sterling
Holding Co., 475 F. Supp. 2d 463 (D. Del. 2007)
(upholding Commission’s amended rules and
applying them retroactively); Tinney v. Geneseo
Communications, Inc., 457 F. Supp. 2d 495 (D. Del.
2006) (same).
58 44 U.S.C. 3501 et seq.
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proxy rules. The opinion in AFSCME v.
AIG created uncertainty regarding the
agency’s longstanding interpretation of
Rule 14a–8(i)(8), making it difficult for
shareholders and companies to assess
the operation of that rule. The
amendment is intended to clarify the
meaning of the exclusion in Rule 14a–
8(i)(8), consistent with the agency’s
unwavering interpretation of the rule for
the last decade. Without such
clarification, shareholders and
companies may need to resort to
litigation to determine the range of
shareholder proposals that are required
to be included in company proxy
materials. They may be uncertain as to
the proper range of proposals that
shareholders may submit to companies
for inclusion in those proxy materials.
For example, without clarification of the
exclusion in Rule 14a–8(i)(8),
shareholders may incur costs in
preparing and submitting proposals that
a company may properly exclude from
its proxy materials.
The Commission solicited public
comment on the benefits and costs of
the proposed amendment to Rule 14a–
8(i)(8). While not directly addressing the
cost-benefit analysis, commenters that
addressed whether further clarification
of the meaning of the election exclusion
was necessary generally thought that an
amendment to Rule 14a–8(i)(8) was
appropriate.59 Commenters supporting
the amendment agreed that it would
eliminate the uncertainty caused by the
decision in AFSCME v. AIG.60 Several
commenters opposing the amendment 61
argued that the Commission’s proxy
rules should facilitate a shareholder’s
ability to nominate directors.62
The amendment should assist
shareholders in determining the precise
meaning of Rule 14a–8(i)(8) in
connection with their preparation and
submission of proposals for inclusion in
a company’s proxy materials. To the
extent that proposals are properly
excluded from proxy materials in
reliance on the amended rule,
companies and their shareholders will
not incur additional costs that would
59 See, e.g., comment letters from BRT and
SCSGP.
60 See, e.g., comment letters from ABA; Adams;
BOA; Boeing; BRT; Burlington Northern;
Caterpillar; Chevron; Peabody; and SCSGP.
61 As discussed above, this release addresses the
limited issue of the Commission’s interpretation of
existing Rule 14a–8(i)(8) and corresponding rule
amendment, and does not address the broader range
of matters contemplated by the Companion Release.
Accordingly, this release does not address the
benefits and costs, and effects on efficiency,
competition and capital formation, of the proposals
in the Companion Release.
62 See, e.g., Form Letter B and comment letters
from Van Winthrop and Thirty-Nine Law
Professors.
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otherwise be incurred if the proposals
were included. Without the clarification
of the proper scope of the Rule 14a–
8(i)(8) exclusion that will be provided
by the amendment, shareholders and
companies may incur substantial
expense in litigating disputes regarding
that basis for exclusion. Thus, the
clarification of Rule 14a–8(i)(8) will
save both shareholders and companies
potentially substantial expense in
litigating disputes regarding its
application.
In addition, the amendment will
prevent circumvention of provisions of
the proxy rules outside of Rule 14a–8,
such as Rules 14a–9 and 14a–12, which
are designed to assure the integrity of
director elections. Finally, the
amendment will facilitate the ability of
staff in the Division of Corporation
Finance to respond to no-action requests
by clarifying the scope of the Rule 14a–
8(i)(8) exclusion.
As we stated in the Proposing Release,
because the proposed amendment
would clarify that the scope of the
exclusion in Rule 14a–8(i)(8) is
consistent with the Commission’s
longstanding interpretation of that
exclusion, shareholders and companies
would not incur additional costs to
determine the appropriate scope of the
exclusion.
The Second Circuit decision may
have altered the expectations of some
shareholders, both within and outside of
the Second Circuit, regarding their
ability to require a company to include
in its proxy statement a shareholder
proposal under Rule 14a–8 to amend the
bylaws to establish procedures for
shareholder-nominated candidates for
director to be included in a company’s
proxy materials. Despite the fact that,
since 1998, the Commission staff
repeatedly has taken the position that
shareholder proposals that may result in
a contested election fall within an
exclusion from the rule, some
uncertainty regarding this position was
created by the AFSCME v. AIG decision.
In this regard, the Commission’s
restatement of the longstanding
interpretation of Rule 14a–8(i)(8) could
impose a cost on shareholders that may
have already incurred expenses in
connection with preparations for bylaw
amendments in the upcoming proxy
season. Because the Commission is
persuaded that the unanimous decision
of the U.S. Supreme Court in Long
Island Care at Home has called the
continuing validity of the Second
Circuit’s decision into question even
within that judicial circuit, however, it
is not clear that the reassertion of the
agency’s longstanding view of the scope
of the election exclusion would itself be
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70455
the sole reason that such costs would
occur.
VI. Consideration of Burden on
Competition and Promotion of
Efficiency, Competition and Capital
Formation
Section 23(a)(2) of the Exchange
Act 63 requires us, when adopting rules
under the Exchange Act, to consider the
impact that any new rule would have on
competition. In addition, Section
23(a)(2) prohibits us from adopting any
rule that would impose a burden on
competition not necessary or
appropriate in furtherance of the
purposes of the Exchange Act. Section
3(f) of the Exchange Act 64 and Section
2(c) of the Investment Company Act of
1940 65 require us, when engaging in
rulemaking that requires us to consider
or determine whether an action is
necessary or appropriate in the public
interest, to consider, in addition to the
protection of investors, whether the
action will promote efficiency,
competition and capital formation.
The AFSCME v. AIG opinion has
created uncertainty regarding the
Commission’s longstanding
interpretation of Rule 14a–8(i)(8),
making it difficult for shareholders and
companies to assess the operation of
that rule. This has resulted in
uncertainty regarding whether Rule
14a–8 requires companies to include in
their proxy materials shareholder
proposals that would establish
procedures whereby shareholders could
submit nominations for director to be
included in the company’s proxy
materials, despite the exclusion
provided by Rule 14a–8(i)(8). This
uncertainty has made it difficult for
shareholders and companies to assess
the proper operation of the shareholder
proposal rule and has generated
economic inefficiency by introducing
potential litigation costs and potential
costs of preparing and responding to
otherwise excludable shareholder
proposals.
The amendment is intended to clarify
the scope of the exclusion in Rule 14a–
8(i)(8), consistent with the agency’s
longstanding interpretation of the Rule.
This should improve shareholders’ and
companies’ ability to assess shareholder
proposals with a clear understanding
whether Rule 14a–8 will require
inclusion of the proposal. Informed
decisions in this regard generally
promote market efficiency and capital
formation, but should not affect
competition. We believe the amendment
63 15
U.S.C. 78w(a)(2).
U.S.C. 78c(f).
65 15 U.S.C. 80a–2(c).
64 15
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to Rule 14a–8(i)(8), and the attendant
clarity and reduction of litigation risk,
expense, and uncertainty for all parties
will not impose a burden on
competition, but will promote efficiency
and capital formation.
VII. Final Regulatory Flexibility Act
Analysis
This Final Regulatory Flexibility
Analysis has been prepared in
accordance with 5 U.S.C. 603. It relates
to an amendment to Rule 14a–8 that
clarifies the application of the exclusion
provided by paragraph (i)(8) of that
Rule.
A. Need for the Rules and Rule
Amendments
The purpose of the amendment is to
clarify the scope of Rule 14a–8(i)(8),
which permits the exclusion from a
company’s proxy materials of certain
bylaw proposals relating to procedures
for the election of directors. The final
rule should improve shareholders’ and
companies’ ability to assess such
shareholder proposals with a clear
understanding of whether Rule 14a–8
will require inclusion or permit
exclusion of the proposal.
B. Significant Issues Raised by Public
Comment
We did not receive comments
specifically on the application of the
interpretation to small entities. Several
commenters supported the agency’s
longstanding interpretation of Rule 14a–
8(i)(8). Some believed that the AFSCME
v. AIG opinion did not invalidate the
interpretation, but rather required the
Commission to state its position and its
reasoning in a formal way.66 Other
commenters disagreed with the
Commission’s position entirely and
therefore opposed the longstanding
interpretation and the related proposed
rule text amendment.67 Some
commenters opposing the interpretation
and rule proposal believed that the
Commission should withhold action
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66 See comment letter from Citigroup. See, e.g.,
comment letters from Adams and Chamber.
67 See, e.g., comment letters from AFL–CIO;
AFSCME; FL Board; Amalgamated Bank; LA Fire &
Police; and NYC Comptroller.
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until it has the opportunity to assess the
impact of the AFSCME v. AIG
decision.68
C. Small Entities Subject to the Rule
The Regulatory Flexibility Act defines
‘‘small entity’’ to mean ‘‘small
business,’’ ‘‘small organization,’’ or
‘‘small governmental jurisdiction.’’ 69
The Commission’s rules define ‘‘small
business’’ and ‘‘small organization’’ for
purposes of the Regulatory Flexibility
Act for each of the types of entities
regulated by the Commission.70 A
‘‘small business’’ and ‘‘small
organization,’’ when used with
reference to a company other than an
investment company, generally means a
company with total assets of $5 million
or less on the last day of its most recent
fiscal year. We estimate that there are
approximately 1,100 companies, other
than investment companies, that may be
considered reporting small entities.71
The final rules may affect each of the
approximately 1,315 small entities that
are subject to the Exchange Act
reporting requirements.
D. Projected Reporting, Recordkeeping
and Other Compliance Requirements
The amendment imposes no new
reporting, recordkeeping, or compliance
requirements. The impact of the
amendment relates to clarifying the
scope of Rule 14a–8(i)(8), which permits
companies to omit certain shareholder
proposals from their proxy materials.
E. Agency Action To Minimize Effect on
Small Entities
The amendment to Rule 14a–8(i)(8) is
intended to provide certainty and
consistency to shareholders and
companies of all sizes regarding the
application of the Rule. It would be
contrary to this objective if we
68 See
Form Letter B.
U.S.C. 601(6).
70 Securities Act Rule 157 [17 CFR 230.157],
Exchange Act Rule 0–10 [17 CFR 240.0–10], and
Investment Company Act Rule 0–10 [17 CFR 270.0–
10] contain the applicable definitions.
71 The estimated number of reporting small
entities is based on 2007 data, including the
Commission’s EDGAR database and Thomson
Financial’s Worldscope database. Approximately
215 investment companies meet this definition.
69 5
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minimized the effect of the amendment
on small entities.
VIII. Statutory Basis and Text of
Amendment
We are adopting an amendment to the
Rule pursuant to Sections 14 and 23(a)
of the Exchange Act, as amended, and
Sections 20(a) and 38 of the Investment
Company Act of 1940, as amended.
List of Subjects in 17 CFR Part 240
Reporting and recordkeeping
requirements, Securities.
In accordance with the foregoing, the
Securities and Exchange Commission
proposes to amend Title 17, chapter II
of the Code of Federal Regulations as
follows:
I
PART 240—GENERAL RULES AND
REGULATIONS, SECURITIES
EXCHANGE ACT OF 1934
1. The authority citation for part 240
continues to read, in part, as follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j,
77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn,
77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j,
78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p,
78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 80a–
20, 80a–23, 80a–29, 80a–37, 80b–3, 80b–4,
80b–11, and 7201 et seq.; and 18 U.S.C. 1350,
unless otherwise noted.
*
*
*
*
*
2. Amend § 240.14a–8 by revising
paragraph (i)(8) to read as follows:
I
§ 240.14a–8
Shareholder proposals.
*
*
*
*
*
(i) * * *
(8) Relates to election: If the proposal
relates to a nomination or an election for
membership on the company’s board of
directors or analogous governing body
or a procedure for such nomination or
election;
*
*
*
*
*
Dated: December 6, 2007.
By the Commission.
Nancy M. Morris,
Secretary.
[FR Doc. E7–23951 Filed 12–10–07; 8:45 am]
BILLING CODE 8011–01–P
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[Federal Register Volume 72, Number 237 (Tuesday, December 11, 2007)]
[Rules and Regulations]
[Pages 70450-70456]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-23951]
[[Page 70449]]
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Part III
Securities and Exchange Commission
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17 CFR Part 240
Shareholder Proposals Relating to the Election of Directors; Final Rule
Federal Register / Vol. 72, No. 237 / Tuesday, December 11, 2007 /
Rules and Regulations
[[Page 70450]]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Part 240
[Release No. 34-56914; IC-28075; File No. S7-17-07]
RIN 3235-AJ95
Shareholder Proposals Relating to the Election of Directors
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Securities and Exchange Commission is publishing this
adopting release to codify the meaning of Rule 14a-8(i)(8) under the
Securities Exchange Act of 1934. Rule 14a-8 provides shareholders with
an opportunity to place certain proposals in a company's proxy
materials for a vote at an annual or special meeting of shareholders.
Subsection (i)(8) of the Rule permits exclusion of certain shareholder
proposals related to the election of directors. The Commission is
adopting an amendment to Rule 14a-8(i)(8) to provide certainty
regarding the meaning of this provision in response to a recent court
decision.
DATES: Effective Date: January 10, 2008.
FOR FURTHER INFORMATION CONTACT: Lillian Brown or Tamara Brightwell, at
(202) 551-3700, in the Division of Corporation Finance, U.S. Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-3010.
SUPPLEMENTARY INFORMATION: We are adopting an amendment to Rule 14a-
8(i)(8) \1\ under the Securities Exchange Act of 1934.\2\
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\1\ 17 CFR 240.14a-8(i)(8).
\2\ 15 U.S.C. 78a et seq.
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I. Background
A. Purpose of the Rule 14a-8(i)(8) Exclusion
On July 27, 2007, the Commission published for comment the proposed
amendment to Rule 14a-8(i)(8) that we are adopting today to address the
uncertainty resulting from a recent decision of the U.S. Court of
Appeals for the Second Circuit that did not defer to the agency's
longstanding interpretation of the Rule.\3\
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\3\ Release No. 34-56161 (July 27, 2007) [72 FR 43488] (the
``Proposing Release'').
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Rule 14a-8, which creates a procedure under which shareholders \4\
may present certain proposals \5\ in the company's proxy materials,
does not require the inclusion of any proposal that ``relates to an
election for membership on the company's board of directors or
analogous governing body.'' \6\ The proper functioning of Rule 14a-
8(i)(8) is particularly critical to assuring that investors receive
adequate disclosure in election contests, and that they benefit from
the full protection of the antifraud provisions of the securities laws.
Because the inclusion of shareholder nominees for director in a
company's proxy materials normally would create a contested election of
directors, the protections of the proxy solicitation rules designed to
provide investors with full and accurate disclosure are of vital
importance in this context. An interpretation of Rule 14a-8(i)(8) that
resulted in the Rule being used as a means to include shareholder
nominees in company proxy materials would, in effect, circumvent the
other proxy rules designed to assure the integrity of director
elections.
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\4\ To be eligible to submit a proposal, Exchange Act Rule 14a-
8(b)(1) (17 CFR 240.14a-8(b)(1)) requires the shareholder to have
continuously held at least $2,000 in market value, or 1%, of the
company's securities entitled to be voted on the proposal for at
least one year. The Rule also contains other eligibility and
procedural requirements for shareholders who wish to include a
proposal in the company's proxy materials.
\5\ With respect to subjects and procedures for shareholder
votes, most state corporation laws provide that a corporation's
charter or bylaws can specify the types of proposals that are
permitted to be brought before the shareholders for a vote at an
annual or special meeting. Rule 14a-8(i)(1) supports these
determinations by providing that a proposal that is not a proper
subject for action by shareholders under the laws of the
jurisdiction of the corporation's organization may be excluded from
the corporation's proxy materials.
\6\ Exchange Act Rule 14a-8(i)(8).
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Several Commission rules, including Exchange Act Rule 14a-12,\7\
regulate contested proxy solicitations so that investors receive
adequate disclosure to enable them to make informed voting decisions in
elections. The requirements to provide these disclosures to
shareholders from whom proxy authority is sought are grounded in Rule
14a-3,\8\ which requires that any party conducting a proxy solicitation
file with the Commission, and furnish to each person solicited, a proxy
statement containing the information specified in Schedule 14A.\9\
Items 4(b) and 5(b) of Schedule 14A require numerous specified
disclosures if the solicitation is subject to Rule 14a-12(c).\10\ A
solicitation is subject to Rule 14a-12(c) if it is made ``for the
purpose of opposing'' a solicitation by any other person ``with respect
to the election or removal of directors. * * *'' \11\ Thus, the result
of Schedule 14A's cross-referencing of Rule 14a-12(c) is to trigger,
when a solicitation with respect to the election of directors is
conducted in opposition to another solicitation, a number of
disclosures relevant in proxy contests.\12\ In addition, Item 7 of
Schedule 14A \13\ requires the furnishing of additional information as
to nominees for director, including nominees of ``persons other than
the
[[Page 70451]]
[company]'' (e.g., shareholders), including:
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\7\ 17 CFR 240.14a-12.
\8\ 17 CFR 240.14a-3.
\9\ Rule 14a-3 provides, in pertinent part, that ``[n]o
solicitation subject to this regulation shall be made unless each
person solicited is concurrently furnished or has previously been
furnished with a publicly-filed preliminary or definitive written
proxy statement containing the information specified in Schedule
14A. * * *''
\10\ 17 CFR 240.14a-101, Items 4 and 5. Items 4 and 5 require
disclosures made by participants in a solicitation. For purposes of
Items 4 and 5, a ``participant'' in the solicitation includes:
Any person who solicits proxies;
Any director nominee for whose election proxies are
being solicited; and
Any committee or group, any member of a committee or
group, and other persons involved in specified ways in the financing
of the solicitation.
See Item 4, Instruction 3. Thus, for each of the numerous
disclosures required as to a ``participant,'' the information must
be disclosed as to all of such persons.
\11\ Because numerous protections of the federal proxy rules are
triggered only by the presence of a solicitation made in opposition
to another solicitation, the requirements regarding disclosures and
procedures in contested elections do not contemplate the presence of
competing nominees in the same proxy materials.
\12\ See 17 CFR 240.14a-101, Items 4(b) and 5(b). These
disclosures include:
By whom the solicitation is made;
The methods to be employed to solicit;
Total expenditures to date and anticipated in
connection with the solicitation;
By whom the cost of the solicitation will be borne;
Any substantial interest of each participant in the
solicitation;
The name, address, and principal occupation or
principal business of each participant;
Whether any participant has been convicted in a
criminal proceeding within the past 10 years;
The amount of each class of securities of the company
owned by the participant and the participant's associates;
Information concerning purchases and sales of the
company's securities by each participant within the past two years;
Whether any part of the purchase price or market value
of such securities is represented by funds borrowed;
Whether a participant is a party to any contract,
arrangements or understandings with any person with respect to
securities of the company;
Certain related party transactions between the
participant or its associates and the company;
Whether the participant or any of its associates have
any arrangement or understanding with any person with respect to any
future employment with the company or its affiliates, or with
respect to any future transactions to which the company or its
affiliates will or may be a party; and
With respect to any person who is a party to an
arrangement or understanding pursuant to which a nominee is proposed
to be elected, any substantial interest that such person has in any
matter to be acted upon at the meeting.
\13\ 17 CFR 240.14a-101, Item 7.
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Any arrangement or understanding between the nominee and
any other person(s) (naming such person(s)) pursuant to which the
nominee was or is selected as a nominee; \14\
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\14\ See Item 401(a) of Regulation S-K [17 CFR 229.401(a)],
which is referenced in Item 7 of Schedule 14A.
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Business experience of the nominee; \15\
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\15\ See Item 401(e)(1) of Regulation S-K [17 CFR
229.401(e)(1)], which is referenced in Item 7 of Schedule 14A.
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Any other directorships held by the nominee in an Exchange
Act reporting company; \16\
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\16\ See Item 401(e)(2) of Regulation S-K [17 CFR
229.401(e)(2)], which is referenced in Item 7 of Schedule 14A.
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The nominee's involvement in certain legal proceedings;
\17\
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\17\ See Items 103 and 401(f) of Regulation S-K [17 CFR 229.103
and 17 CFR 229.401(f)], which are referenced in Item 7 of Schedule
14A.
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Certain transactions between the nominee and the company;
\18\ and
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\18\ See Item 404 of Regulation S-K [17 CFR 229.404], which is
referenced in Item 7 of Schedule 14A.
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Whether the nominee complies with independence
requirements.\19\
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\19\ See Item 407(a) of Regulation S-K [17 CFR 229.407(a)],
which is referenced in Item 7 of Schedule 14A.
Finally, and of critical importance, all of these disclosures are
covered by the prohibition contained in Rule 14a-9 on the making of a
solicitation containing false or misleading statements or
omissions.\20\
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\20\ See 17 CFR 240.14a-9.
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These numerous protections of the federal proxy rules are triggered
only by the presence of a solicitation made in opposition to another
solicitation. Accordingly, were the election exclusion not available
for proposals that would establish a process for the election of
directors that circumvents the proxy disclosure rules, it would be
possible for a person to wage an election contest without providing the
disclosures required by the Commission's present rules governing such
contests. Additionally, false and misleading disclosure in connection
with such an election contest could potentially occur without liability
under Exchange Act Rule 14a-9 for material misrepresentations made in a
proxy solicitation. The Commission stated this rationale for the
exclusion at the time it was proposed in 1976:
[T]he principal purpose of [Rule 14a-8(i)(8)] is to make clear,
with respect to corporate elections, that Rule 14a-8 is not the
proper means for conducting campaigns or effecting reforms in
elections of that nature, since other proxy rules, including Rule
14a-11, are applicable thereto.\21\ (Emphasis added.)
\21\ Release No. 34-12598 (July 7, 1976) [41 FR 29982]. The
Commission's reference in its 1976 statement to ``other proxy rules,
including Rule 14a-11,'' reflects the fact that, in 1976, Rule 14a-
11 was the Commission proxy rule governing election contests. As
part of a series of rule changes in 1999, the Commission rescinded
Rule 14a-11 and moved many of the requirements of prior Rule 14a-11
to the current Rule 14a-12. [17 CFR 240.14a-12] See Release No. 33-
7760 (October 22, 1999) [64 FR 61408]. Accordingly, the Commission's
reference to Rule 14a-11 in 1976 was to the rules governing election
contests, which now may be found generally elsewhere in the proxy
rules and, in particular, in Rule 14a-12.
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Accordingly, the staff has determined that shareholder proposals that
may result in a contested election--including those which establish a
procedure to list shareholder-nominated director candidates in the
company's proxy materials--fall within the election exclusion. We agree
with this position and believe it is consistent with the explanation
that the Commission gave in 1976.
As explained in the Proposing Release, except for a few brief
references to the Rule, the Commission did not discuss the meaning of
Rule 14a-8(i)(8) from the time of its 1976 statement until its
shareholder access proposal in October 2003,\22\ and the two proposing
releases \23\ in July 2007. Between 1976 and the time of the AFSCME v.
AIG litigation, the staff of the Commission took ``no-action''
positions on the application of the Rule. Between 1976 and 1990, in
applying the Rule to proposals that would have established procedures
for shareholders to nominate candidates to the board, in the limited
number of cases that presented the question, the staff did not concur
with companies that the proposals could be excluded under the election
exclusion.\24\ In 1990, however, without mentioning the pre-1990
decisions, the staff clearly stated its position that the Rule
permitted exclusion of a proposal that ``would establish a procedure
that may result in contested elections to the board'' in a response to
a request for no-action relief from Amoco.\25\ In doing so, the staff
aligned its interpretation with the Commission's 1976 statement.
Between 1990 and 1998, the staff granted no-action relief under the
election exclusion nine times \26\ and denied relief twice \27\ to
operating companies seeking to exclude shareholder proposals to adopt
procedures that would give shareholders the ability to nominate
director candidates in the company's proxy materials. For the past
decade, since 1998, the Commission staff has repeatedly taken the
position that shareholder proposals that may result in a contested
election fall within the election exclusion. On several occasions after
1990, the Commission itself declined to review these ``no-action''
positions.\28\
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\22\ Release No. 34-48626 (October 14, 2003) [68 FR 60784].
\23\ See Proposing Release and Release No. 34-56160 (July 27,
2007) [72 FR 43466].
\24\ The proposals submitted between 1976 and 1990 typically
presented similar, but not identical, procedures as those presented
in the direct access proposals generally submitted in recent years.
See, e.g., Pan Am Corp. (March 22, 1985); Union Oil Company
(February 24, 1983); and Mobil Corp. (March 3, 1981). Cf. Tylan
Corporation (September 25, 1987) (allowing exclusion under the prior
version of Rule 14a-8(i)(8) of a shareholder proposal to reduce the
number of directors and nominate a new slate of directors meeting
certain criteria).
\25\ Amoco Corporation (February 14, 1990). See also Thermo
Electron (March 22, 1990); Unocal Corp. (February 6, 1990); and Bank
of Boston (January 26, 1990).
\26\ See Storage Technology Corporation (March 11, 1998);
BellSouth Corp. (February 4, 1998); Unocal Corporation (February 8,
1991); AT&T (January 11, 1991); Flow International (July 16, 1990);
Thermo Electron (March 22, 1990); Amoco Corporation (February 14,
1990); Unocal Corporation (February 6, 1990) and Bank of Boston
(January 26, 1990). See also International Business Machine
Corporation (March 4, 1992), in which the staff noted that the
proposal would be excludable unless modified as specified in the
staff's response letter.
\27\ See Dravo Corporation (February 21, 1995) and Pinnacle West
Capital Corporation (March 26, 1993). See also, TCW/DW Term Trust
2003 (July 15, 1997), in which the Division of Investment Management
denied no-action relief.
\28\ See, e.g., Storage Technology Corporation, letter of
Jonathan Katz, Secretary of the Commission, to Dr. Seymour Licht
P.E. (April 6, 1998).
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B. Background Relating to Rule Amendment
In American Federation of State, County & Municipal Employees,
Employees Pension Plan v. American International Group, Inc.,\29\ the
U.S. Court of Appeals for the Second Circuit held that AIG could not
rely on Rule 14a-8(i)(8) to exclude a shareholder proposal seeking to
amend the company's bylaws to establish a procedure under which the
company would be required, in specified circumstances, to include
shareholder nominees for director in the company's proxy materials.\30\
The Second Circuit described the Commission's statement in 1976 as
limiting the election exclusion ``to shareholder proposals used to
oppose solicitations dealing with an identified board seat in an
[[Page 70452]]
upcoming election and reject[ing] the somewhat broader interpretation
that the election exclusion applies to shareholder proposals that would
institute procedures making such election contests more likely.'' \31\
After 1976, in the Second Circuit's view, the Commission gradually
shifted away from this interpretation, and came to its present
interpretation in 1990. The court then held ``that an agency's
interpretation of an ambiguous regulation made at the time the
regulation was implemented or revised should control unless that agency
has offered sufficient reasons for its changed interpretation.'' \32\
Finding no such sufficient reason, the court declined to defer to what
it viewed as the 1990 interpretation and deemed it ``appropriate''
instead to defer to its own reading of the meaning of the 1976
interpretation.\33\ It is the Commission's position that the election
exclusion should not be, and was not originally intended to be, limited
in this way.\34\
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\29\ 462 F.3d 121 (2d Cir. 2006) (AFSCME v. AIG).
\30\ Consistent with the longstanding interpretation, the
Commission staff had issued to AIG a letter stating that ``[t]here
appears to be some basis for your view that AIG may exclude the
proposal under rule 14a-8(i)(8) * * * we will not recommend
enforcement action to the Commission if AIG omits the proposal from
its proxy materials * * *.'' American International Group (February
14, 2005).
\31\ AFSCME v. AIG, 432 F.3d at 128.
\32\ Id. at 123.
\33\ Id. at 129.
\34\ In this regard, we note that the Second Circuit decision
stated that ``if the SEC determines that the interpretation of the
election exclusion embodied in its 1976 Statement would result in a
decrease in necessary disclosures or any other undesirable outcome,
it can certainly change its interpretation of the election
exclusion, provided that it explains its reasons for doing so.'' Id.
at 130.
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This decision was issued on September 5, 2006, as companies and
shareholders prepared for the 2007 proxy season. Although the decision
is binding only within the Second Circuit, it created uncertainty in
the rest of the nation about the continuing validity of the
longstanding interpretation of Rule 14a-8(i)(8). While the Commission
began the process that led to the current rulemaking to clarify the
Rule's application, the staff of the Division of Corporation Finance
received three no-action requests seeking to exclude similar proposals
under Rule 14a-8(i)(8). The staff took a position of ``no view'' on the
one request for no-action relief under the Rule that it received and
that was not withdrawn.\35\ This request for no-action relief was
submitted by Hewlett-Packard Company, which asserted that any
litigation related to the proposal would be handled by the U.S. Court
of Appeals for the Ninth Circuit and that the staff therefore should
grant no-action relief under Rule 14a-8(i)(8) on the basis that it was
consistent with the agency's interpretation of the Rule and the Ninth
Circuit was not bound by the decisions of the Second Circuit. Hewlett-
Packard ultimately included the proposal in its proxy materials, but
the proposal did not receive a majority of shareholder votes. A second
request for no-action relief was submitted by Reliant Energy.
Subsequent to the staff of the Division of Corporation Finance taking a
``no view'' position on Hewlett-Packard's request, Reliant Energy filed
a complaint in the U.S. District Court for the Southern District of
Texas seeking a declaratory judgment that the company could properly
omit a similar proposal that it had received for inclusion in its proxy
materials.\36\ During the pendency of this litigation and prior to the
staff's response to Reliant's no-action request, the shareholder
withdrew the proposal and the company therefore withdrew its no-action
request.\37\ A third request for no-action relief was withdrawn after
the company agreed to include the proposal in its proxy materials.\38\
These events demonstrate the uncertainty the Second Circuit decision
created.
---------------------------------------------------------------------------
\35\ Hewlett-Packard Company (January 22, 2007), available at
http://www.sec.gov/divisions/corpfin/cf-noaction/2007/hp012207-14a-
8.htm.
\36\ The Reliant complaint may be found at http://www.sec.gov/
divisions/corpfin/cf-noaction/2007/reliantenergy011607-14a-8-
incoming.pdf.
\37\ Reliant Energy, Inc. (February 23, 2007), available at
http://www.sec.gov/divisions/corpfin/cf-noaction/2007/
reliantenergy011607-14a-8-incoming.pdf.
\38\ UnitedHealth Group Inc. (March 29, 2007), available at
http://www.sec.gov/divisions/corpfin/cf-noaction/2007/uhg032907-14a-
8.htm.
---------------------------------------------------------------------------
Compounding this uncertainty created by the Second Circuit's
decision is the U.S. Supreme Court's recent unanimous reversal of
another Second Circuit decision involving an agency's interpretation of
its rules. In Long Island Care at Home, Ltd. v. Coke,\39\ the Supreme
Court addressed the validity of the Department of Labor's changed
interpretation of its rules. As in AFSCME v. AIG, the Second Circuit
declined to follow the agency's more recent interpretation. In
rejecting the Second Circuit's view, the Supreme Court held that an
agency's interpretation of its own regulations is controlling unless
plainly erroneous or inconsistent with the regulations being
interpreted. The Supreme Court noted that the Department of Labor ``may
have interpreted these regulations differently at different times in
their history.''\40\ Nonetheless, ``as long as interpretive changes
create no unfair surprise * * * the change in interpretation alone
presents no separate ground for disregarding the Department's present
interpretation.''\41\ Indeed, whereas the Second Circuit required the
Commission to provide ``sufficient reason'' for what it regarded as a
changed interpretation in order to merit deference, the Supreme Court,
in reversing the Second Circuit's decision in another administrative
law case, held that a department's change in interpretation alone
presents no separate ground for disregarding the department's present
interpretation. As a result of this post-AFSCME v. AIG decision, which
binds all U.S. Courts of Appeals and other federal courts, it is more
likely that a court would uphold this agency's interpretation of Rule
14a-8(i)(8). If a lower court were to apply the reasoning in Long
Island Care at Home and reach a result contrary to the AFSCME v. AIG
court, further litigation and confusion about the Commission's rules
could follow.
---------------------------------------------------------------------------
\39\ 127 S.Ct. 2339 (2007).
\40\ Long Island Care at Home, 127 S.Ct at 2349.
\41\ Id.
---------------------------------------------------------------------------
To permit this escalating state of confusion to continue for the
2008 proxy season and beyond would effectively require shareholders and
companies to go to court to determine the meaning of the Commission's
proxy rules, and it could take years before the U.S. Supreme Court
resolved any resulting conflicts between the circuits. Inaction by the
Commission would thus promote further uncertainty and leave both
shareholders and companies in a position of ``every litigant for
himself.'' This would benefit neither shareholders nor companies. If
the current environment was permitted to continue, and these types of
proposals were included in proxy statements and subsequently approved,
shareholders would be exposed to the risk that the disclosure
provisions of the securities laws could be circumvented. And by
furthering legal uncertainty about the meaning and application of the
Commission's rules, it would impose needless costs on shareholders and
companies alike, and undermine the Commission's statutory mission to
protect investors, promote fair and orderly markets and facilitate
capital formation.
The Commission has a fundamental responsibility to make sure that
the rules and regulations it adopts have clear meaning so that the
regulated community can conform its conduct accordingly. To that end,
we previously reiterated the Commission's interpretation in the
Proposing Release, and today we are adopting a clear and concise
amendment to the text of Rule 14a-8 that codifies the agency's
longstanding interpretation of Rule 14a-8(i)(8). It is our intention
that this will enable shareholders and companies to know with certainty
whether a proposal may or may not be excluded under Rule 14a-8(i)(8).
It also will facilitate the staff's efforts in reviewing no-action
requests and in interpreting Rule 14a-8 with certainty in responding to
requests
[[Page 70453]]
for no-action letters during the 2008 proxy season. We believe it is
important to adopt a rule change to eliminate any uncertainty,
particularly in light of Long Island Care at Home and its implications.
Thus, today's release codifies the agency's longstanding interpretation
of Rule 14a-8(i)(8) and the modifications to the rule we adopt today do
not affect or address any other aspect of the staff's prior
determinations under the election exclusion.
II. Commission Interpretation of Rule 14a-8(i)(8)
Rule 14a-8(i)(8) permits exclusion of a proposal that would result
in an immediate election contest (e.g., by making or opposing a
director nomination for a particular meeting) or would set up a process
for shareholders to conduct an election contest in the future by
requiring the company to include shareholders' director nominees in the
company's proxy materials for subsequent meetings.
In the AFSCME v. AIG opinion, the Second Circuit took the view that
a shareholder proposal may be excluded under Rule 14a-8(i)(8) if it
would result in an immediate election contest, but that a proposal may
not be excluded under Rule 14a-8(i)(8) if it ``establish[es] a process
for shareholders to wage a future election contest.'' \42\ As the
Commission stated in 1976, however, the express purpose of the election
exclusion is to make clear that Rule 14a-8 is not a proper ``means'' to
achieve election contests because ``other proxy rules'' are applicable
to such contests. We are acting today to state clearly that the phrase
``relates to an election'' in the election exclusion cannot be read so
narrowly as to refer only to a proposal that relates to the current
election, or a particular election, but rather must be read to refer to
a proposal that ``relates to an election'' in subsequent years as well.
In this regard, if one looked only to what a proposal accomplished in
the current year, and not to its effect in subsequent years, the
purpose of the exclusion could be evaded easily. For example, such a
reading might permit a company to exclude a shareholder proposal that
nominated a candidate for election as director for the upcoming meeting
of shareholders, but not exclude a proposal that resulted in the
company being required to include the same shareholder-nominated
candidate in the company's proxy materials for the following year's
meeting.
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\42\ AFSCME v. AIG, 462 F.3d at 128.
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Our interpretation of Rule 14a-8(i)(8) is fully consistent with the
Commission's statement in 1976, that the Rule was not intended ``to
cover proposals dealing with matters previously held not excludable by
the Commission, such as cumulative voting rights, general
qualifications for directors * * *.'' The Commission's references in
1976 to proposals relating to ``cumulative voting rights'' and
``general qualifications for directors'' simply reflect the long-held
belief that these proposals generally do not trigger the contested
elections proxy rules and therefore are not excludable under Rule 14a-
8(i)(8). Accordingly, the Commission's 1976 statement should not be
interpreted to mean that Rule 14a-8(i)(8) permits exclusion of
proposals establishing nomination or election procedures other than
those that would result in a contested election. It also is consistent
with the Commission's statement in 1976 that Rule 14a-8 is not the
proper means for conducting campaigns or effecting reforms in corporate
elections. As explained in the Proposing Release and above, the
analysis under Rule 14a-8(i)(8) does not focus on whether the proposal
would make election contests more likely, but whether the resulting
contests would be governed by the Commission's proxy rules for
contested elections.
We received numerous public comments regarding the Proposing
Release, and have carefully considered them. Commenters supporting the
agency's longstanding interpretation noted that, notwithstanding the
court decision, no new facts or circumstances exist that warrant the
Commission deviating from that interpretation.\43\ Commenters believed
that the court decision did not invalidate the agency's position, but
rather required the Commission to state its position and its reasoning
in a formal way.\44\ Other commenters disagreed with the Commission's
position entirely and therefore opposed the longstanding interpretation
and the proposed Rule text amendment.\45\ Some commenters opposing the
interpretation and Rule proposal believed that the Commission should
withhold action until it has the opportunity to assess the impact of
the AFSCME v. AIG decision.\46\
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\43\ See comment letters from U.S. Chamber of Commerce
(``Chamber'') and Society of Corporate Governance Professionals
(``SCSGP'').
\44\ See comment letter from Citigroup Inc. (``Citigroup'').
See, e.g., comment letters from The Adams Express Company
(``Adams'') and Chamber.
\45\ See, e.g., comment letters from AFL-CIO; American
Federation of State, County and Municipal Employees, AFL-CIO
(``AFSCME''); State Board of Administration of Florida (``FL
Board''); Amalgamated Bank LongView Funds (``Amalgamated Bank'');
Board of Fire and Police Pension Commissioners of the City of Los
Angeles (``LA Fire & Police''); and Comptroller of the City of New
York (``NYC Comptroller'').
\46\ See Form Letter B.
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Many of the comments we received on the amendment that we are
adopting today went beyond the limited issue the Proposing Release
sought to address--namely, the Commission's interpretation of existing
Rule 14a-8(i)(8) and proposed rule amendment--and instead focused on
the broader range of matters implicated by a separate companion release
(the ``Companion Release'') that proposed a comprehensive package of
amendments to the proxy rules and related disclosure requirements.\47\
We separately proposed the amendment that we are adopting today so that
we could eliminate the uncertainty created by AFSCME v. AIG. As
discussed throughout the Proposing Release, and in this release, we
believe that a definitive codification of our longstanding
interpretation is both needed and appropriate. We appreciate the
thoughtful comments regarding the questions raised in the Companion
Release but, because they go beyond the scope of the Proposing Release,
they are more appropriately addressed in connection with the Companion
Release. In this release, we are acting only on the matters that were
the subject of the Proposing Release.
---------------------------------------------------------------------------
\47\ We received approximately 8800 comment letters addressing
the rule proposal and accompanying interpretation. Approximately
8400 of these letters were form letters opposing both this release
and the Companion Release published for comment on July 25. Of the
8800, approximately 400 were not form letters.
As discussed in more detail in the Companion Release, those
proposals followed a long history of prior Commission consideration
and examination of possible regulatory approaches to shareholder
nominations of directors, including several prior proposals,
hearings, and roundtables. See Release No. 34-56160 (July 27, 2007)
[72 FR 43466].
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III. Amendment to Rule 14a-8(i)(8)
The amendment that we are adopting today is intended to clarify the
meaning of Rule 14a-8(i)(8) by codifying the agency's longstanding
interpretation of the Rule. The text of Rule 14a-8(i)(8) currently
specifies that a proposal may be excluded ``[i]f the proposal relates
to an election for membership on the company's board of directors or
analogous governing body.'' To clarify the meaning of this provision,
consistent with the Commission's longstanding interpretation, we
proposed to amend the language of the rule to read:
If the proposal relates to a nomination or an election for
membership on the company's board of directors or analogous
governing body or a procedure for such nomination or election.
[[Page 70454]]
The term ``procedures'' in the election exclusion relates to procedures
that would result in a contested election either in the year in which
the proposal is submitted or in any subsequent year.
Commenters that addressed whether further clarification of the
meaning of the election exclusion was necessary thought an amendment to
Rule 14a-8(i)(8) was appropriate.\48\ Commenters that supported the
amendment believed that it would eliminate the uncertainty caused by
the decision in AFSCME v. AIG.\49\ Many commenters opposing the
amendments addressed the matters that are the subject of the Companion
Release. Some, for example, argued that the Commission's proxy rules
should facilitate shareholders' ability to nominate directors.\50\
Several commenters, some opposing the interpretation and rule amendment
altogether and others supporting the interpretation and rule amendment,
believed that the proposed language was too broad.\51\ They asserted
that under the proxy rules shareholders have been allowed to include
proposals that may make contested elections more likely, such as
proposals to de-stagger the board or introduce cumulative voting.\52\
One commenter stated that any final rule should not inadvertently
overrule other positions on shareholder proposals that the staff has
taken.\53\ Several commenters recommended that the rule define the term
``procedure'' or contain a note that provides a list of circumstances
that would constitute a proposal that may result in an election
contest.\54\ Other commenters believed that listing the procedures that
the staff historically has found to fall under the exclusion is
unnecessary and may result in confusion because it would be difficult
to draft a comprehensive list that includes every possible
permutation.\55\
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\48\ See, e.g., comment letters from Business Roundtable
(``BRT'') and SCSGP.
\49\ See, e.g., comment letters from American Bar Association
(``ABA''); Adams; Bank of America (``BOA''); The Boeing Company
(``Boeing''); BRT; Burlington Northern Santa Fe Corporation
(``Burlington Northern''); Caterpillar Inc. (``Caterpillar'');
Chevron Corporation (``Chevron''); Peabody Energy Corporation
(``Peabody''); and SCSGP.
\50\ See, e.g., Form Letter B and comment letters from Stephen
R. Van Winthrop (``Van Winthrop'') and Group of Thirty-Nine Law
Professors (``Thirty-Nine Law Professors'').
\51\ See, e.g., comment letters from ABA; Corporate Governance;
theRacetotheBottom.org (``Race''); and Sullivan & Cromwell
(``Sullivan'').
\52\ See, e.g., comment letters from Race and Sullivan.
\53\ See comment letter from Amalgamated Bank.
\54\ See, e.g., comment letters from BRT and Peabody.
\55\ See, e.g., comment letters from ABA and SCSGP.
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As discussed above, we agree with those commenters that support
amending Rule 14a-8(i)(8) in order to provide greater clarity to both
shareholders and companies, and believe that the comments that address
the broader issues in the Companion Release go beyond the scope of this
release. We believe that the clarifying rule amendment is consistent
with the agency's longstanding interpretation of the election exclusion
and that the references to ``nomination'' and ``procedure'' in the rule
text appropriately reflect the purpose of the exclusion. We have not
included in the amended rule text a list of the specific types of
proposals that may be excluded, as was suggested by some commenters, as
we agree with commenters who asserted that inclusion of such a list is
unnecessary and could be confusing. We therefore are adopting the
change to the rule text as proposed. To meet some of the concerns
expressed by commenters, however, we emphasize that the changes to the
rule text relate only to procedures that would result in a contested
election, either in the year in which the proposal is submitted or in
subsequent years. The changes to the rule text do not affect or address
any other aspect of the agency's prior interpretation of the
exclusion.\56\ Thus, under the Rule as amended, a shareholder proposal
that would allow for shareholder use of the company's proxy materials
to nominate director candidates, such as the proposal at issue in
AFSCME v. AIG, would be excludable. We believe the actions we are
taking today will provide certainty in the application of Rule 14a-
8(i)(8) and will preserve our longstanding interpretation of the Rule.
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\56\ For example, we note that, as stated in the Proposing
Release, the staff has taken the position that a proposal relates to
``an election for membership on the company's board of directors or
analogous governing body'' and, as such, is subject to exclusion
under Rule 14a-8(i)(8) if it could have the effect of, or proposes a
procedure that could have the effect of, any of the following:
Disqualifying board nominees who are standing for
election;
Removing a director from office before his or her term
expired;
Questioning the competence or business judgment of one
or more directors; or
Requiring companies to include shareholder nominees for
director in the companies' proxy materials or otherwise resulting in
a solicitation on behalf of shareholder nominees in opposition to
management-chosen nominees.
Conversely, the staff has taken the position that a proposal may
not be excluded under Rule 14a-8(i)(8) if it relates to any of the
following:
Qualifications of directors or board structure (as long
as the proposal will not remove current directors or disqualify
current nominees);
Voting procedures (such as majority or plurality voting
standards or cumulative voting);
Nominating procedures (other than those that would
result in the inclusion of a shareholder nominee in company proxy
materials); or
Reimbursement of shareholder expenses in contested
elections.
These lists represent non-exclusive examples of types of
proposals that the staff has found to be excludable and non-
excludable under the election exclusion.
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We believe that the amendment we are adopting today, as well as the
definitive interpretive guidance provided in this release, will provide
certainty to shareholders and companies regarding the application of
Rule 14a-8(i)(8).\57\ The clarification provided will enable
shareholders and companies to better understand the shareholder
proposal process, and will facilitate the efforts of the Commission's
staff in its review of future no-action requests.
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\57\ The approach we are taking today is similar to the
Commission's response to the decision of the Third Circuit in Levy
v. Sterling Holding Co., 314 F.3d 106 (3d Cir. 2002), which also
resulted in uncertainty and confusion about the interpretation of
Commission rules. See 69 FR 35982 (June 25, 2004) (proposing
release), 70 FR 46080 (August 9, 2005) (adopting release); Bruh v.
Bessemer Venture Partners III L.P., 464 F.3d 202 (2d Cir. 2006)
(accepting Commission interpretation of rule before amendment based
on Commission's amicus brief in the case and the rule amendments and
observing that the amended rule was valid); Levy v. Sterling Holding
Co., 475 F. Supp. 2d 463 (D. Del. 2007) (upholding Commission's
amended rules and applying them retroactively); Tinney v. Geneseo
Communications, Inc., 457 F. Supp. 2d 495 (D. Del. 2006) (same).
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IV. Paperwork Reduction Act
The proxy rules constitute a ``collection of information''
requirement within the meaning of the Paperwork Reduction Act of 1995,
the PRA.\58\ The amendment to Rule 14a-8(i)(8) described in this
release relates to a previously approved collection of information, the
title of which is ``Proxy Statements--Regulation 14A (Commission Rules
14a-1 through 14a-16 and Schedule 14A)'' (OMB Control No. 3235-0059).
This regulation was adopted pursuant to the Exchange Act and sets forth
the disclosure requirements for proxy statements filed by companies to
help investors make informed voting decisions.
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\58\ 44 U.S.C. 3501 et seq.
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The Rule 14a-8(i)(8) amendment merely revises the text of Rule 14a-
8(i)(8) in a manner that is consistent with the agency's longstanding
interpretation of the rule. As such, the amendment does not affect the
Schedule 14A collection of information for purposes of the PRA.
Therefore, we are not submitting the amendment for OMB approval.
V. Cost-Benefit Analysis
The amendment to Rule 14a-8(i)(8) clarifies the Commission's
existing
[[Page 70455]]
proxy rules. The opinion in AFSCME v. AIG created uncertainty regarding
the agency's longstanding interpretation of Rule 14a-8(i)(8), making it
difficult for shareholders and companies to assess the operation of
that rule. The amendment is intended to clarify the meaning of the
exclusion in Rule 14a-8(i)(8), consistent with the agency's unwavering
interpretation of the rule for the last decade. Without such
clarification, shareholders and companies may need to resort to
litigation to determine the range of shareholder proposals that are
required to be included in company proxy materials. They may be
uncertain as to the proper range of proposals that shareholders may
submit to companies for inclusion in those proxy materials. For
example, without clarification of the exclusion in Rule 14a-8(i)(8),
shareholders may incur costs in preparing and submitting proposals that
a company may properly exclude from its proxy materials.
The Commission solicited public comment on the benefits and costs
of the proposed amendment to Rule 14a-8(i)(8). While not directly
addressing the cost-benefit analysis, commenters that addressed whether
further clarification of the meaning of the election exclusion was
necessary generally thought that an amendment to Rule 14a-8(i)(8) was
appropriate.\59\ Commenters supporting the amendment agreed that it
would eliminate the uncertainty caused by the decision in AFSCME v.
AIG.\60\ Several commenters opposing the amendment \61\ argued that the
Commission's proxy rules should facilitate a shareholder's ability to
nominate directors.\62\
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\59\ See, e.g., comment letters from BRT and SCSGP.
\60\ See, e.g., comment letters from ABA; Adams; BOA; Boeing;
BRT; Burlington Northern; Caterpillar; Chevron; Peabody; and SCSGP.
\61\ As discussed above, this release addresses the limited
issue of the Commission's interpretation of existing Rule 14a-
8(i)(8) and corresponding rule amendment, and does not address the
broader range of matters contemplated by the Companion Release.
Accordingly, this release does not address the benefits and costs,
and effects on efficiency, competition and capital formation, of the
proposals in the Companion Release.
\62\ See, e.g., Form Letter B and comment letters from Van
Winthrop and Thirty-Nine Law Professors.
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The amendment should assist shareholders in determining the precise
meaning of Rule 14a-8(i)(8) in connection with their preparation and
submission of proposals for inclusion in a company's proxy materials.
To the extent that proposals are properly excluded from proxy materials
in reliance on the amended rule, companies and their shareholders will
not incur additional costs that would otherwise be incurred if the
proposals were included. Without the clarification of the proper scope
of the Rule 14a-8(i)(8) exclusion that will be provided by the
amendment, shareholders and companies may incur substantial expense in
litigating disputes regarding that basis for exclusion. Thus, the
clarification of Rule 14a-8(i)(8) will save both shareholders and
companies potentially substantial expense in litigating disputes
regarding its application.
In addition, the amendment will prevent circumvention of provisions
of the proxy rules outside of Rule 14a-8, such as Rules 14a-9 and 14a-
12, which are designed to assure the integrity of director elections.
Finally, the amendment will facilitate the ability of staff in the
Division of Corporation Finance to respond to no-action requests by
clarifying the scope of the Rule 14a-8(i)(8) exclusion.
As we stated in the Proposing Release, because the proposed
amendment would clarify that the scope of the exclusion in Rule 14a-
8(i)(8) is consistent with the Commission's longstanding interpretation
of that exclusion, shareholders and companies would not incur
additional costs to determine the appropriate scope of the exclusion.
The Second Circuit decision may have altered the expectations of
some shareholders, both within and outside of the Second Circuit,
regarding their ability to require a company to include in its proxy
statement a shareholder proposal under Rule 14a-8 to amend the bylaws
to establish procedures for shareholder-nominated candidates for
director to be included in a company's proxy materials. Despite the
fact that, since 1998, the Commission staff repeatedly has taken the
position that shareholder proposals that may result in a contested
election fall within an exclusion from the rule, some uncertainty
regarding this position was created by the AFSCME v. AIG decision. In
this regard, the Commission's restatement of the longstanding
interpretation of Rule 14a-8(i)(8) could impose a cost on shareholders
that may have already incurred expenses in connection with preparations
for bylaw amendments in the upcoming proxy season. Because the
Commission is persuaded that the unanimous decision of the U.S. Supreme
Court in Long Island Care at Home has called the continuing validity of
the Second Circuit's decision into question even within that judicial
circuit, however, it is not clear that the reassertion of the agency's
longstanding view of the scope of the election exclusion would itself
be the sole reason that such costs would occur.
VI. Consideration of Burden on Competition and Promotion of Efficiency,
Competition and Capital Formation
Section 23(a)(2) of the Exchange Act \63\ requires us, when
adopting rules under the Exchange Act, to consider the impact that any
new rule would have on competition. In addition, Section 23(a)(2)
prohibits us from adopting any rule that would impose a burden on
competition not necessary or appropriate in furtherance of the purposes
of the Exchange Act. Section 3(f) of the Exchange Act \64\ and Section
2(c) of the Investment Company Act of 1940 \65\ require us, when
engaging in rulemaking that requires us to consider or determine
whether an action is necessary or appropriate in the public interest,
to consider, in addition to the protection of investors, whether the
action will promote efficiency, competition and capital formation.
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\63\ 15 U.S.C. 78w(a)(2).
\64\ 15 U.S.C. 78c(f).
\65\ 15 U.S.C. 80a-2(c).
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The AFSCME v. AIG opinion has created uncertainty regarding the
Commission's longstanding interpretation of Rule 14a-8(i)(8), making it
difficult for shareholders and companies to assess the operation of
that rule. This has resulted in uncertainty regarding whether Rule 14a-
8 requires companies to include in their proxy materials shareholder
proposals that would establish procedures whereby shareholders could
submit nominations for director to be included in the company's proxy
materials, despite the exclusion provided by Rule 14a-8(i)(8). This
uncertainty has made it difficult for shareholders and companies to
assess the proper operation of the shareholder proposal rule and has
generated economic inefficiency by introducing potential litigation
costs and potential costs of preparing and responding to otherwise
excludable shareholder proposals.
The amendment is intended to clarify the scope of the exclusion in
Rule 14a-8(i)(8), consistent with the agency's longstanding
interpretation of the Rule. This should improve shareholders' and
companies' ability to assess shareholder proposals with a clear
understanding whether Rule 14a-8 will require inclusion of the
proposal. Informed decisions in this regard generally promote market
efficiency and capital formation, but should not affect competition. We
believe the amendment
[[Page 70456]]
to Rule 14a-8(i)(8), and the attendant clarity and reduction of
litigation risk, expense, and uncertainty for all parties will not
impose a burden on competition, but will promote efficiency and capital
formation.
VII. Final Regulatory Flexibility Act Analysis
This Final Regulatory Flexibility Analysis has been prepared in
accordance with 5 U.S.C. 603. It relates to an amendment to Rule 14a-8
that clarifies the application of the exclusion provided by paragraph
(i)(8) of that Rule.
A. Need for the Rules and Rule Amendments
The purpose of the amendment is to clarify the scope of Rule 14a-
8(i)(8), which permits the exclusion from a company's proxy materials
of certain bylaw proposals relating to procedures for the election of
directors. The final rule should improve shareholders' and companies'
ability to assess such shareholder proposals with a clear understanding
of whether Rule 14a-8 will require inclusion or permit exclusion of the
proposal.
B. Significant Issues Raised by Public Comment
We did not receive comments specifically on the application of the
interpretation to small entities. Several commenters supported the
agency's longstanding interpretation of Rule 14a-8(i)(8). Some believed
that the AFSCME v. AIG opinion did not invalidate the interpretation,
but rather required the Commission to state its position and its
reasoning in a formal way.\66\ Other commenters disagreed with the
Commission's position entirely and therefore opposed the longstanding
interpretation and the related proposed rule text amendment.\67\ Some
commenters opposing the interpretation and rule proposal believed that
the Commission should withhold action until it has the opportunity to
assess the impact of the AFSCME v. AIG decision.\68\
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\66\ See comment letter from Citigroup. See, e.g., comment
letters from Adams and Chamber.
\67\ See, e.g., comment letters from AFL-CIO; AFSCME; FL Board;
Amalgamated Bank; LA Fire & Police; and NYC Comptroller.
\68\ See Form Letter B.
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C. Small Entities Subject to the Rule
The Regulatory Flexibility Act defines ``small entity'' to mean
``small business,'' ``small organization,'' or ``small governmental
jurisdiction.'' \69\ The Commission's rules define ``small business''
and ``small organization'' for purposes of the Regulatory Flexibility
Act for each of the types of entities regulated by the Commission.\70\
A ``small business'' and ``small organization,'' when used with
reference to a company other than an investment company, generally
means a company with total assets of $5 million or less on the last day
of its most recent fiscal year. We estimate that there are
approximately 1,100 companies, other than investment companies, that
may be considered reporting small entities.\71\ The final rules may
affect each of the approximately 1,315 small entities that are subject
to the Exchange Act reporting requirements.
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\69\ 5 U.S.C. 601(6).
\70\ Securities Act Rule 157 [17 CFR 230.157], Exchange Act Rule
0-10 [17 CFR 240.0-10], and Investment Company Act Rule 0-10 [17 CFR
270.0-10] contain the applicable definitions.
\71\ The estimated number of reporting small entities is based
on 2007 data, including the Commission's EDGAR database and Thomson
Financial's Worldscope database. Approximately 215 investment
companies meet this definition.
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D. Projected Reporting, Recordkeeping and Other Compliance Requirements
The amendment imposes no new reporting, recordkeeping, or
compliance requirements. The impact of the amendment relates to
clarifying the scope of Rule 14a-8(i)(8), which permits companies to
omit certain shareholder proposals from their proxy materials.
E. Agency Action To Minimize Effect on Small Entities
The amendment to Rule 14a-8(i)(8) is intended to provide certainty
and consistency to shareholders and companies of all sizes regarding
the application of the Rule. It would be contrary to this objective if
we minimized the effect of the amendment on small entities.
VIII. Statutory Basis and Text of Amendment
We are adopting an amendment to the Rule pursuant to Sections 14
and 23(a) of the Exchange Act, as amended, and Sections 20(a) and 38 of
the Investment Company Act of 1940, as amended.
List of Subjects in 17 CFR Part 240
Reporting and recordkeeping requirements, Securities.
0
In accordance with the foregoing, the Securities and Exchange
Commission proposes to amend Title 17, chapter II of the Code of
Federal Regulations as follows:
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
1. The authority citation for part 240 continues to read, in part,
as follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3,
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i,
78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5,
78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4,
80b-11, and 7201 et seq.; and 18 U.S.C. 1350, unless otherwise
noted.
* * * * *
0
2. Amend Sec. 240.14a-8 by revising paragraph (i)(8) to read as
follows:
Sec. 240.14a-8 Shareholder proposals.
* * * * *
(i) * * *
(8) Relates to election: If the proposal relates to a nomination or
an election for membership on the company's board of directors or
analogous governing body or a procedure for such nomination or
election;
* * * * *
Dated: December 6, 2007.
By the Commission.
Nancy M. Morris,
Secretary.
[FR Doc. E7-23951 Filed 12-10-07; 8:45 am]
BILLING CODE 8011-01-P
