Tuesday’s webcast – “This Year’s Rule 14a-8 Process: Corp Fin Staff Explains What You Need to Know” – featuring Corp Fin Chief Counsel, Michael Seaman, Corp Fin Counsel, Emma O’Hara, Cooley’s Reid Hooper and Gibson Dunn’s Ron Mueller and moderated by our colleague Liz Dunshee addressed a ton of procedural questions on the new 14a-8 process for the 2026 proxy season. The webcast replay is already posted and available for free — even for folks who aren’t members of TheCorporateCounsel.net.

In the meantime, here are just a few of the open questions addressed during the program (subject to the SEC’s standard disclaimer):

– The Staff doesn’t need the Rule 14a-8(j) notices to be particularly long, whether or not they seek a response. The notices only need to include information required by the rule (the proposal, an explanation of why the company believes that it may exclude the proposal, which should, if possible, refer to applicable authority, like prior Division letters, and an opinion of counsel, if applicable) plus the reasonable basis representation, if you want a response.

That said, the Staff recognizes that these notices might also be written for other audiences (e.g., the proponent, proxy advisors, other shareholders and other stakeholders) and include much more detail than the Staff needs for their purposes, although the Staff won’t be doing a in depth analysis of this material since that wouldn’t accomplish the intended purpose of reducing the burden on the Staff’s time.

– If the company wants a response and includes a reasonable basis representation, there is no magic language required, and it has already taken a few forms based on what has been submitted to date (see a few examples already posted). While the announcement refers to an “unqualified” representation, you don’t need to include the word unqualified. “Unqualified” was included in the announcement to avoid the representation being subject to assumptions. The company’s inclusion of language like “we represent we have a reasonable basis” will trigger the Staff’s process to issue a response.

– With the Staff continuing to respond to Rule 14a-8(i)(1) no-action requests, they were asked about no-action requests that raise multiple bases for exclusion — for example, (i)(1) and (i)(7). To this, the Staff noted that they hope companies don’t combine other basis for exclusion with their (i)(1) requests.

Finally, keep in mind that the sec.gov shareholder proposals site remains in flux — especially as it relates to no-action letters that were submitted prior to the announcement. Keep checking back since it will make more sense as it is further updated. For example, as companies that submitted a no-action request before the announcement submit their 14a-8(j) notices, those files will be moved to their appropriate bucket depending on whether they include the reasonable basis representation (in which case they’ll be included under Responses to Rule 14a-8(j) Notifications) or not (in which case they’ll be included under Rule 14a-8(j) Notifications With No Division Response Forthcoming). (They are currently in the “no response” bucket.)

They discussed so much more — like what to do with correspondence with the proponent, what to do if a proposal is received after the 14a-8(j) deadline and how companies will consider whether to exclude a proposal, especially where there are limited Staff concurrences. Listen to the full replay for more.

– Meredith Ervine