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While Delaware’s SB 21 was the most hotly debated topic at Tulane’s Corporate Law Institute earlier this month, there were also lots of great discussions surrounding shareholder activism and engagement. Tiffany Posil, Chief of the Office of M&A in the Division of Corporation Finance, joined the panel “Hot Topics in M&A Practice” and shared some helpful comments on common questions that have come up since the mid-February release of updated CDIs on the filing of Schedules 13D and 13G.

Here’s a summary of her comments on three common questions. (Keep in mind that all Staff comments are subject to the standard disclaimer that the views are the person’s own in their official capacity and not necessarily reflective of the views of the Commission, the Commissioners, or members of the Staff, and our summaries are based on our real-time notes.)

– Is publishing a voting policy or guideline viewed as influencing control with no other actions taken? No; these policies are not targeting a particular company and apply to all the filer’s portfolio companies. Even where they have bright line conditions (for example, to say that the investor will always vote “against” if the company doesn’t take a particular action), they are not considered an attempt to influence control at a particular company, and the CDI permits 13G filers to express views and how those views impact its voting decisions.

– What if investors then meet with an issuer to discuss those guidelines? The CDI allows for a meeting and discussion regarding policies, but 13G status is at risk the more the discussion becomes specific or insistent or turns into a negotiation (like demanding actions in exchange for votes). She also noted that company-initiated meetings are less likely to call filer status into question, but that doesn’t mean that an investor has a “blank check” to say whatever it wants in a company-initiated engagement and remain a 13G filer.

– What is the intent behind the use of “implies” and “implicitly conditions its support”? These words were used to make sure the CDI didn’t “imply” that 13G filers can continue to use Schedule 13G as long as they don’t say magic words like “We’re going to vote against a director,” where all other actions suggest that that’s what they’re going to do. (Note the parallel to Regulation FD where companies can trip up Regulation FD when they convey information “the meaning of which is apparent though implied.”)

Finally, she stressed that the examples provided in the CDI are illustrative only and not the only instances where engagement could be considered influencing control and the guidance was not intended to chill or impede communications.

– Meredith Ervine