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In the wake of Whole Foods’ successful no-action request to have Corp Fin agree that it can exclude a proxy access shareholder proposal because it will have its own access proposal on the ballot, 10 more companies have submitted no-action requests that also argue under Rule 14a-8(i)(9) that the shareholder proposals are counterproposals as noted in this blog by Davis Polk’s Ning Chiu. For example, in its incoming no-action request, Marathon Oil notes that it has its own 5%/5-years proposal – and Cabot Oil’s own proposal offers a 5%/3-year threshold as noted in its no-action request. Compare these to the New York City Comptroller’s proposal of 3%/3-years. Given that Whole Foods received Corp Fin’s blessing with a 9%/5-years threshold, it should be a slam dunk for these companies.

Proxy Access: Whole Foods Lowers Own Proposal to 5%/5-Years

One potential roadblock is that proponent Jim McRitchie filed an appeal to Corp Fin’s Whole Foods decision right before Christmas. The appeal was made to the full Commission – so there is some chance that the Whole Foods decision could be overturned. Yesterday’s column by the NY Times’ Gretchen Morgenson covers the appeal – and notes that Whole Foods recently filed a preliminary proxy statement with a proxy access proposal of 5%/5-years – not the 9%/5-years that the company had included in its no-action request.

Assuming the Commissioners side with Corp Fin, it will be interesting to see how many of the 75 companies that have received a proposal from the Comptroller are going to go this exclusion route. And even more interesting will be how shareholders react to companies that place their own proposals on the ballot in an effort to knock these shareholder proposals off the ballot…

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