No Action for No-Actions: SEC Announces Significant Change in No-Action Relief During the 2025-26 Proxy Season

Rule 14a-8(i)(1) provides a means for companies to request no-action relief from the Division where the shareholder proposal is improper under the laws of the jurisdiction of that company’s organization. In making its announcement, the Division cited various resource and timing considerations following the lengthy government shutdown and the large volume of registration statements and other filings requiring prompt staff attention, as well as the extensive body of guidance from the SEC and the SEC Staff available to both companies and proponents. The Division also cited recent developments and interpretations in state law and precatory proposals, noting that the lack of sufficient guidance in that area as the reason for the Division’s continued review and consideration of no-action requests for that basis of exclusion.

This news follows closely on the heels of remarks made by Chairman Paul Atkins in a keynote address last month, where he suggested that the SEC may not have a role in policing precatory proposals and that there may, in fact, not be a fundamental right under Delaware law for a company’s shareholders to vote on precatory (i.e., non-binding) proposals, unless such a right has been granted in the company’s charter, bylaws or other governing documents, and thus may be excludable under Rule 14a-8(i)(1). Outside of Delaware, Texas’s shareholder proposal law has gone into effect and allows certain public companies to opt-in to a shareholder minimum ownership threshold of $1 million or 3 percent of the company’s voting shares, among other requirements, to submit a shareholder proposal. In his October 2025 remarks, Chairman Atkins indicated that companies opting into the Texas law should be able to exclude proposals under Rule 14a-8(i)(1).

The Division’s statement notes that companies may exclude shareholder proposals from their proxy materials without no-action relief. A company seeking to make such an exclusion must still notify the SEC and the shareholder proponents of its intent to exclude the proposal no later than 80 calendar days prior to filing its definitive proxy statement, in accordance with Rule 14a-8(j). A company may request a response from the Division stating that the Division will not object to the company’s exclusion of the shareholder proposal on the basis of the company or counsel’s representation by including an unqualified representation that the company has a reasonable basis to exclude the proposal based on Rule 14a-8, prior guidance and/or judicial decisions. A company seeking to exclude a shareholder proposal under Rule 14a-8(i)(1) must provide the Division with a legal opinion that the shareholder proposal is not proper under state law.

The Division’s announcement is applicable to all no-action requests received prior to October 1, 2025, to which the Division has not yet responded, as well as to any requests received from October 1, 2025 until September 30, 2026.

Vinson & Elkins is closely monitoring developments in this area. Please reach out to your V&E team to discuss the potential effects of these developments on your company.