One of the risks that we discussed with clients when the SEC Staff shifted to the sidelines for this year’s shareholder proposal season was the prospect that shareholders would utilize the “floor proposal” provisions in Rule 14a-4 to run a “zero slate” contest in the event that a company excluded the shareholder proposal that the proponent had submitted pursuant to Rule 14a-8. As Meredith recently noted over on The Proxy Season blog, we recently saw this risk emerge for one company:

Late last month, Trillium Asset Management advertised its “innovative path to a successful negotiation” with a retailer regarding the inclusion of its climate change-related shareholder proposal in the company’s proxy statement. Here’s more from its announcement:

“Trillium outlined a clear path forward under SEC proxy solicitation rules and BJ’s bylaws: if the company continued towards omission, Trillium would submit shareholder proposals under the pathway provided for in the company’s bylaws and solicit proxies in support of those items. Those proposals would have included a GHG emissions proposal and, importantly, additional good corporate governance shareholder proposals. Trillium’s objective throughout was straightforward – ensuring shareholders had the opportunity to consider, at least, Trillium’s GHG emissions proposal on the company’s proxy.”

“Following further engagement, Trillium and BJ’s reached an agreement: BJ’s will include the Trillium shareholder proposal in its 2026 proxy materials, and the engagement would proceed in the well-established Rule 14a-8 process.”

In the announcement, Trillium reminds proponents that they have options outside of litigating:

“Demonstrating meaningful options without resorting to court: Investors are not confined to a binary choice between acquiescing to omission and filing suit. Without shifting the dispute to the judiciary, shareholders retain credible, well established procedural tools, including independent solicitations, that can change the equation.”

We may be seeing more of these. The announcement also says, “We are proud to join other committed shareholders in the exploration of multiple paths to protect our rights as shareholders.”

We addressed this risk earlier this year in the January-February 2026 issue of The Corporate Counsel, which describes the situation as follows:

Further, some shareholder proponents have raised the possibility of bypassing the Rule 14a-8 process entirely and submitting a “floor proposal” to be raised at the annual meeting, with the prospect that the proponent would solicit its own proxies for that proposal. As we noted in the January–February 2025 issue of The Corporate Counsel at page 10, companies should be on the lookout for shareholder proposals that are not submitted in accordance with the Rule 14a-8 process, particularly given a new activist technique that utilizes the floor proposal approach. In 2024, we saw activists effectively use the floor proposal approach in what has been dubbed a “zero slate” contest, forcing a company in one instance to include the proponent’s five proposals in its own proxy statement when the proponent solicited proxies that included the company’s proposals as well as the proponent’s proposals.

If you would like to review a more detailed description of the mechanics of a “zero slate” contest, check out the article that I wrote titled “Beware of the ‘Other’ Shareholder Proposal Rule This Proxy Season: Considering Rule 14a-4” in the January–February 2025 issue of The Corporate Counsel.

– Dave Lynn