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Here’s a blog from Adam Kanzer of Domini Social Investments based on his recent comment letter sent to the SEC:

According to a series of letters submitted on behalf of the issuer community, including a joint letter submitted by five prominent law firms, the original intent of Rule 14a-8(i)(9) and its successor formulations was to prohibit a very specific abuse of process by shareholders – the use of 14a-8 to solicit votes in opposition to management proposals (“counter proposals”). This would amount to a circumvention of the SEC’s solicitation rules. It is therefore clear that the exemption was based on the sequencing of proposals, and was intended to be used infrequently. The rule, however, is now applied where such abuses have not even been alleged. The issuer community is seeking an extremely broad and unreasonable reading of the subsection.

The law firms’ assertion that the sequencing of the proposals “is not a consideration encompassed by the text of the rule” ignores their own assertions about the history of the rule. The rule is grounded in a prohibition on counter proposals offered by shareholders, and a counter proposal must come second.

In addition to sequencing, public notice is also critical. Unless management has publicly announced its intention to submit a particular proposal to a vote before the proposal filing deadline—including the terms of that proposal—a shareholder proposal cannot be considered a solicitation “opposing a proposal supported by management.” This is largely a hypothetical abuse of process that is generally not available to shareholders, except, perhaps, on rare occasions (Northern States Power Company (July 25, 1995)(Shareholder proposal requesting that the board of directors require management to negotiate a more equitable merger agreement excludable as ‘counter to a proposal to be submitted by management.’) This subsection was presumably crafted to deal with those rare occasions. So rare, in fact, that they were deemed to be an “abuse” of process.

In reality, the shareholder proposal either accidentally coincides with a management proposal on the same topic, or management responds to the shareholder proposal with a proposal of its own. Neither situation can be considered an “abuse” by shareholders, as suggested by the 1982 Release.

Issuers are asking Staff to interpret (i)(9), a rule designed to address counter proposals by shareholders, to permit the exclusion of shareholder proposals any time a counter proposal has been offered by management. Not only does this reverse the intent of the subsection, as explained by the law firm letter, it eliminates the concept of a ‘direct conflict’ from the rule and converts what was intended to be a narrow exemption to deal with a rare abuse of process into a trump card to be used at management’s discretion.

Establishing a clear, bright line approach to 14a-8(i)(9), consistent with the wording of the rule, would dramatically reduce the opportunity for gamesmanship and avoid the need for SEC Staff to delve into those perilous waters. Our recommended approach, first suggested by the Council of Institutional Investors and endorsed by CalPERS and CalSTRS – non-binding proposals cannot “conflict” with management proposals – would satisfy issuers’ and proponents’ need for clarity and would eliminate any meaningful legal conflicts that “conflicting” proposals may create. Our proposal to permit conflicting binding proposals to be re-characterized as non-binding proposals would eliminate the need for any investigation into issuer or shareholder motives, while preserving both shareholder democracy and management’s right to submit alternative proposals to a vote.

Proxy Access Proposals: The Latest Stats

This Skadden memo is the first memo – of what likely will be many – with comprehensive coverage of the voting results for proxy access shareholder proposals this proxy season. We’ll be posting all of them in our “Proxy Access” Practice Area. Check it out!

Delaware Bans “Loser Pays” Bylaws & Authorizes Exclusive Forum Bylaws

The Delaware Governor has signed the latest Delaware amendments into law, taking effect on August 1st. On DealLawyers.com, we’re posting memos in our “Exclusive Forum Bylaws” Practice Area (also see this blog about whether the new law impacts federal class actions). And here’s the intro from this Cooley blog:

On June 24, 2015, the Governor of Delaware signed into law amendments to the Delaware General Corporation Law proposed by the Delaware Bar’s Corporation Law Council and overwhelmingly passed by the Legislature regarding fee-shifting and forum selection provisions in Delaware governing documents. (See this post and this post.) More specifically, the amendments invalidate, in Delaware charters and bylaws, fee-shifting provisions in connection with internal corporate claims. “Internal corporate claims” are claims, including derivative claims, that are based on a violation of a duty by a current or former director or officer or stockholder or as to which the corporation law confers jurisdiction on the Court of Chancery. These claims include claims arising under the DGCL and claims of breach of fiduciary duty by current or former directors or officers or controlling stockholders of the corporation, or persons who aid and abet those breaches. However, as discussed in this post, federal securities class actions are not included. In addition, the new provision is not intended to prevent these types of provisions in a stockholders agreement or other writing signed by the stockholder against whom the provision is to be enforced.

The amendments also expressly authorize the adoption of exclusive forum provisions for internal corporate claims, as long as the exclusive forum is in Delaware. Although the amendment does not address the validity of a provision that selects, as an additional forum, a forum other than Delaware, the synopsis indicates that it “invalidates such a provision selecting the courts in a different State, or an arbitral forum, if it would preclude litigating such claims in the Delaware courts.” A different result is possible where there is a provision in a stockholders’ agreement or other writing signed by the stockholder against whom the provision is to be enforced. In addition, an exclusive forum may not be “enforceable if the Delaware courts lack jurisdiction over indispensable parties or core elements of the subject matter of the litigation,” and the amendment in not intended to preclude evaluation of whether the terms or manner of adoption of the exclusive forum provisions “comport with any relevant fiduciary obligation or operate reasonably in the circumstances presented.” Deputy Secretary of State Richard J. Geisenberger said 99.6% of companies that have a forum-selection bylaw choose Delaware as the preferred venue. And, no surprise, Delaware wants cases involving Delaware corporations to be tried in Delaware.

– Broc Romanek