After the Staff issued its November 17th statement on how it would handle the Rule 14a-8 process this year, one of the questions people were asking was, “Will the Rule 14a-8(j) notices be posted on the SEC’s website?” The answer to that question appears to be “yes” – at the very least, for pending no-action requests that had been submitted before the new approach was announced.
On November 17th – which was the same day Corp Fin issued its statement about the Rule 14a-8 process for the 2026 proxy season – a company furnished a supplemental notice about a pending no-action request that it had submitted prior to the statement being issued. The supplemental notice followed the instructions for the new process. The company requested a response from the Staff – so in accordance with the Staff’s statement, the company included an unqualified representation about having a reasonable basis to exclude the proposal at issue. In this case, the company’s position was that the proposal could be excluded on procedural grounds.
On November 19th, Corp Fin posted its response. You can see the company’s supplemental notice on page 18. Corp Fin’s response says in part:
You represent that the Company has a reasonable basis to exclude the Proposal. Based solely on that representation, we will not object if the Company excludes the Proposal from its proxy materials.
Copies of all of the correspondence on which this response is based will be made available on our website.
This is something we’ll know more about soon, but for now it’s reasonable to expect the notices to be posted, even if a company isn’t requesting a response. In addition to submitting the Rule 14a-8(j) notice to the Commission, remember that you also have to send it to the proponent. We’d expect that any no-action requests submitted this season under Rule 14a-8(i)(1) would also be posted in the typical way.
We’ve been talking a lot about Rule 14a-8 shareholder proposals for obvious reasons – but there are also a host of other disclosures to think through for your upcoming proxy statement, which are relevant even if your company doesn’t regularly receive shareholder proposals.
Thankfully, we don’t have to worry about new rule requirements for upcoming proxy statements and Form 10-Ks – no disclosure rules have changed since last year. But as this 31-page Mayer Brown memo observes, shifting SEC priorities and other policy dynamics may affect your disclosures. Compared to this time last year, everything feels different. The memo gives thoughts on how to handle that:
Against the backdrop of heightened macro volatility in 2025, including introduced and threatened tariffs, rapid developments and emerging risks in artificial intelligence (“AI”), and broader political and geopolitical instability, companies should review and recalibrate their approach to disclosures for the upcoming annual report and proxy season with renewed discipline. As we discuss in further detail below, companies should reassess and refine their Form 10‑K disclosures with an emphasis on specificity, materiality, and cross‑document consistency.
In Management’s Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”), companies should address known trends and uncertainties that are reasonably likely to materially affect liquidity, capital resources, supply chains, pricing, customer demand, or segment performance, making clear the timing, magnitude, and drivers of impacts (e.g., tariff exposure by product or geography, mitigation strategies, and sensitivities). Risk factor drafting should avoid boilerplate and describe company‑specific risks, including tariff‑related trade restrictions and retaliatory measures, regulatory shifts in AI (such as use of generative AI tools and evolving compliance expectations for AI governance), cybersecurity threats, and policy unpredictability affecting environmental, social and governance (“ESG”) matters and diversity, equity and inclusion (“DEI”) initiatives. Companies should also consider whether any of these developments warrants updates to its cautionary language related to forward-looking statements.
Much like in 2025, we expect that a number of high-profile issues will receive attention from investors, companies and other stakeholders during the 2026 proxy season. These issues, including ESG matters and climate-based disclosure, among others, reflect the changing political landscape and highlight the differences between the current SEC administration’s priorities and those of the prior administration.
The memo takes a close look at how these issues (and others) affect various sections in the proxy statement and Form 10-K. It also points out that you should pay extra attention to Item 405 disclosures this year, since the Edgar Next transition may have caused some folks to miss Section 16 deadlines.
Yesterday, the SEC issued a Litigation Release announcing that it had filed a joint stipulation dismissing its high-profile cybersecurity disclosure enforcement action against SolarWinds and its CISO. The enforcement action followed a massive Russian cyberattack against the company and challenged alleged “hypothetical risk factor” disclosures and other statements that purported to describe the company’s cybersecurity practices and policies.
The case was notable for, among other things, the SEC’s unusual decision to bring charges against SolarWinds’ CISO and its argument that the company’s cybersecurity weaknesses represented internal accounting controls failures. The SEC took a big hit last year when a federal judge dismissed all of its claims against the company and its CISO with respect to statements made prior to the attack, and all but one claim relating to post-attack disclosures.
Earlier this year, the SEC and SolarWinds reached a tentative settlement of the case, but yesterday’s announcement apparently takes that off the table. Here’s what the Litigation Release had to say:
The U.S. Securities and Exchange Commission today filed a joint stipulation with Defendants SolarWinds Corporation and its Chief Information Security Officer, Timothy G. Brown, to dismiss, with prejudice, the Commission’s ongoing civil enforcement action. As stated in the joint stipulation, the Commission’s decision to seek dismissal is “in the exercise of its discretion” and “does not necessarily reflect the Commission’s position on any other case.”
The dismissal of the SolarWinds enforcement action coincides with the release of a Cornerstone Research Report finding that SEC enforcement proceedings against public companies declined significantly during the 2025 fiscal year. Check out Kevin LaCroix’s blog on “The D&O Diary” for more information on that report.
A recent Wilson Sonsini memo offers advice for boards and management on best practices for shareholder engagement and dealing with shareholder activism. Here’s an excerpt from the memo’s discussion of how to conduct a meeting with investors:
The company’s representatives should conduct the meeting and drive the discussion. Shareholders want to engage directly with the decisionmakers, so top management or a board member should be the company’s primary speakers. Throughout the meeting, the company will want to show that its participants have a strong command of the issues facing the company.
Although not mandatory, executives generally engage most in discussions related to their functional areas. For example, the CEO would concentrate on questions and discussion related to strategy and “big picture” items, the CFO would focus on financials, and the General Counsel would focus on governance. Throughout the meeting, it is important for the company’s participants to demonstrate competence, alignment, and engagement.
Approach the meeting as a discussion and not a negotiation. This means listening actively and soliciting feedback, and not being dismissive, defensive, or confrontational. It is natural for there to be issues on which the company and the shareholder disagree, but the company’s focus in the meeting should not be on trying to change the shareholder’s mind. Rather, the goal is to clearly and unemotionally communicate the company’s position, reasoning, and value creation strategy while also building credibility with shareholders.
Other engagement-related topics addressed by the memo include when to engage with shareholders, whether to engage with known activists, how to prepare for a meeting with shareholders, what legal issues to keep in mind, and what to do after engagement.
Trendsetters: The number of all S&P 500 companies scoring 90 percent or above for political disclosure and accountability was 112, an increase over last year’s 103, and comprising more than 22 percent of all S&P 500 companies evaluated. The number of Trendsetters now has increased fourfold from the 28 companies that received scores of 90 percent or higher in 2015. Among the 318 companies belonging to the so-called core S&P 500, those constant in the Index since 2015, there are 92 Trendsetters this year.
Top-Tier Milestones: 205 companies in the overall S&P 500 placed in the first Index tier (scoring from 80 percent to 100 percent). This is more than double the 76 top-tier companies in 2015. It is one company fewer than last year. Among core S&P 500 companies, 164 companies – over half of all core S&P 500 companies – placed in this year’s top tier. Four fewer core companies scored in the top tier in 2024.
Shrinking Bottom Tier: The number of S&P 500 companies scoring lowest for disclosure and accountability – in the bottom 20 percent – has continued to decline. From 204 bottom-tiercompanies in 2015 it has dropped to 88 this year.
CPA-Zicklin found that 328 members of the S&P 500 had general board oversight of their political spending, up from 319 last year, and that 291 S&P 500 companies have board committee review of direct political contributions and expenditures, up from 282 last year and 168 in 2015.
Companies have had a lot to say about tariffs this year, and with good reason. The president’s “Liberation Day” announcement shook financial markets and left many companies scrambling to determine what this dramatic change in US global trade policy would mean for them – and how to communicate that information to investors. So, it may come as a surprise to learn that, according to FactSet, companies are talking a lot less about tariffs in their 3rd quarter earnings calls than they did in their 1st and 2nd quarter calls:
Given concerns in the market about tariffs, did more S&P 500 companies comment on tariffs during their earnings conference calls for the third quarter compared to the second quarter?
The answer is no. FactSet Document Search (which allows users to search for key words or phrases across multiple document types) was used to answer this question. Through Document Search, FactSet searched for the term “tariff” or “tariffs” in the conference call transcripts of all the S&P 500 companies that conducted earnings conference calls from September 15 through November 14.
Overall, the term “tariff” or “tariffs” was cited on 238 earnings calls conducted by S&P 500 companies during this period. This number reflects a quarter-over-quarter decline of 33% compared to Q2 2025, when the term “tariff” or “tariffs” was cited on 357 earnings calls (from June 15 through September 14). This is also the second straight quarter where the number of earnings calls citing the term “tariff” or “tariffs” has decreased.
For reference purposes, FactSet says that 452 S&P 500 companies mentioned tariffs in the Q1 earnings calls.
To a certain extent, this decline likely reflects the fact that many companies have been pretty transparent with their prior disclosures about the impact of tariffs and simply don’t have much more to add. On the other hand, they’re still saying quite a bit about this topic compared to prior years. According to FactSet, the mentions in Q3 earnings calls are still the fourth highest on record.
The Trump administration plainly has the proxy advisor industry in its crosshairs, but what exactly might it do to squeeze the industry beyond issuing the executive orders the president is reported to be contemplating? Over on The Business Law Prof Blog, Prof. Ann Lipton has some thoughts on that topic.
Ann notes that the SEC could classify proxy advice as investment advice and try to make proxy advisors jump through additional regulatory hoops under the Investment Advisors Act, but she points out that the courts haven’t supported recent efforts by the SEC to add burdensome regulatory obligations under that statute. However, she says that there are other options available:
The SEC (and the Department of Labor, which regulates private pension funds) could come at this from the client side. Institutional investors rely on proxy advisers to satisfy their own fiduciary obligations to vote their shares in their beneficiaries’ best interest, and they are able to do that because of prior guidance by both the SEC and the DoL permitting it.
During Trump I, there were some attempts to burden institutional investors’ ability to rely on proxy voting advice. For one, the SEC withdrew some letters it had issued about how to deal with investment advisers who have conflicts of interest, though, as I blogged at the time, the import of that action was unclear.
Later, the Department of Labor proposed to, essentially, overburden pension plan voting policies to the point of making votes virtually impossible to cast cost effectively – unless the plan developed a blanket policy in favor of voting with management (which, of course, gives away the game about what’s really motivating these attacks on shareholder voting).
That proposal was substantially watered down, but the outlines demonstrate what’s within the realm of the possible today. Both agencies could withdraw prior guidance and interpretations that permit reliance on proxy advisors, or, at the very least, make reliance on proxy voting advice very difficult from an administrative point of view.
I know that the prospect of ISS and Glass Lewis crying tears of unfathomable sadness won’t break the hearts of many of our readers, but everyone should keep in mind my Sideshow Bob quote from earlier this week. The more the pendulum swings in one direction now, the more it’s going to swing in the other when there’s a change in regimes.
Cooley recently published its inaugural “Post IPO Governance Report,” which analyzes more than 225 US IPOs from 2017 through 2021 in order to explore how their governance structures evolved during the first years after an IPO. The report looks at governance structures, voting matters, board and leadership changes, and governance and compensation practices. Here’s an excerpt from the report’s discussion of classified board practices:
Classified boards are a defining feature of recent IPO governance, with approximately 88% of the IPO Companies adopting a classified board structure at the time of IPO. While this structure is prevalent across industries, notable variation exists. For example, classified boards are nearly universal among life sciences companies (97%), while about one-fifth of services and retail companies went public with a single class of directors.
Classified boards were more common among noncontrolled companies (91%) than controlled companies (83%), suggesting the structure is viewed as a stabilizing mechanism in the absence of a controlling shareholder. Controlling founders or sponsors, meanwhile, may rely on it less to safeguard control.
Prevalence was also higher among PE- and VC-backed companies (95% and 90%, respectively), reflecting lower sensitivity among these financial sponsors to governance features, such as classified boards, that are often viewed less favorably by institutional investors and proxy advisors.
The report says that classified boards remain the dominant structure for the post-IPO companies, but notes that approximately 10% of the companies that went public with a classified board during the relevant period have opted to declassify. It also says that declassification generally resulted from institutional investor or proxy advisor pressure and is more common among larger companies and those in retail and other consumer-facing industries. Of the 15 companies that have declassified their boards, 12 did so through a management proposal, while the remainder declassified through sunset provisions built into charter documents.
Although institutional investors have become somewhat less hostile toward the concept of dual class capital structures among newly public companies, they usually want to see some sort of sunset provisions baked into corporate charters that will cause the dual class structure to fall away after a period of time.
According to this white paper from Minerva Analytics, most companies with dual class share structures (DCSS) include some kind of sunset provision in their charter, but those usually don’t include the kind of sunset terms that investors prefer. This excerpt summarizes Minerva’s findings:
Of the 259 US companies in Minerva’s coverage with capital structures with DCSS, almost four-fifths have at least one sunset provision in their governing documents – reflecting the growing incentive to transition to the one share, one vote structure. Only 24 companies have adopted time-based sunset provisions, of which six are compliant with the CII recommendation that sunset provisions are triggered within seven years. The remaining 28 companies’ provisions trigger in eight to 50 years.
Dilution-based sunset provisions have been adopted by 120 companies. Time- and dilution-based provisions are generally considered the most effective types of sunset provisions. This is because they provide clear and enforceable triggers that cannot be avoided to protect controlling shareholders. This means that once these provisions are triggered, they ensure automatic conversion to a single class of shares with one vote per share and is particularly the case for time-based provisions.
The white paper says that more than 40% of US technology IPOs retain dual class structures, while just 7% of Russell 3000 companies have them.
Last month, I blogged about White & Case’s report on the terms of publicly filed insider trading policies. Wilson Sonsini recently reviewed the terms of insider trading policies adopted by a particular subgroup of those companies – the SV 150. Here are some of their key findings:
Broad applicability of policies: Insider trading policies generally apply broadly to all directors, officers, employees, and other service providers, with 88 percent of the policies reviewed covering the foregoing persons and their affiliates. The list of persons subject to quarterly blackout periods and pre-clearance requirements is often narrowed to directors, officers, and a specified subset of employees or other service providers.
Quarterly blackout periods: Most of the insider trading policies reviewed impose quarterly blackout periods that commence two to four weeks before the then-current fiscal quarter-end (with two weeks being the most common timing), and end one or two trading days following the public release of quarterly earnings. Ten of the SV150 companies impose a longer quarterly blackout period for directors and senior-level employees, and a shorter quarterly blackout period for other employees and service providers.
Pre-clearance requirements: Most of the insider trading policies reviewed require certain insiders to obtain pre-clearance before trading even in an open trading window. Pre-clearance requirements are often limited to directors, officers, and employees with access to material nonpublic information (MNPI).
Treatment of gifts: Recent amendments to SEC rules require reporting of gifts by Section 16 filers on the same basis as open market sales and other disposition transactions, likely leading some companies to adjust policies with respect to gifts. Among the insider trading policies reviewed, most provide some restrictions on gifts and charitable contributions of securities, but approaches vary.
Restricted activities: hedging, pledging, and margin accounts: Nearly all insider trading policies prohibit hedging transactions involving company securities. Approximately 43 percent of insider trading policies permit pledging of company stock, with prior approval and/or only by certain company insiders, but only 27 percent of insider trading policies allow margin accounts, with similar approval and limitation structures.
I admit that I haven’t pored over the details of Wilson Sonsini’s findings, but at a glance it doesn’t seem that there’s much that differentiates the way that the SV 150 have approached their insider trading policies from the approach taken by public companies in other industries. That being said, White & Case did find that 20% of public company policies addressed shadow trading. Since Wilson Sonsini’s report didn’t mention the topic, perhaps this is an area where SV 150 companies are somewhat less restrictive than some of their more conservative counterparts in the broader public company group.
