From No-Action to No Response: SEC Completes Its Exit from Rule 14a-8 Review

The Evolution of SEC Review: "No-Action," "No-Objection," and "No Response"

For decades, the Division engaged in the informal practice of expressing its enforcement position when companies sought to exclude shareholder proposals from their proxy materials under Rule 14a-8. This process typically involved a company submitting a "no-action" request to the Division, which would then issue a response letter either concurring or declining to concur with the company's view that a proposal could be excluded. Although companies were never legally required to seek the Division's approval, the process provided practical guidance that both companies and investors generally followed.

The Division's August 14, 2026, announcement represents another step in the deregulatory process that began on November 17, 2025, when the Division first announced it would not respond to no-action requests for the 2026 proxy season, except for requests involving Rule 14a-8(i)(1). At that time, the Division cited "resource and timing considerations following the lengthy government shutdown and the large volume of registration statements and other filings requiring prompt staff attention."

As an interim measure, the Division offered companies an alternative: if a company included an "unqualified representation" in its Rule 14a-8(j) notification that the company had a reasonable basis to exclude the proposal, the Division would respond with a letter indicating it would "not object" to the omission. The Division's "no-objection" was based purely on a company providing the "unqualified representation" and did not represent a substantive evaluation of the adequacy of the representation.

Now, the Division will neither respond to Rule 14a-8 "no-action" requests, nor will it respond to Rule 14a-8(j) notices with "no-objection" letters to confirm that it will not object to a company's omission of a proposal.

Each of these developments represents an incremental step in the SEC's withdrawal from the shareholder proposal process, and the cumulative effect fundamentally alters the framework companies and proponents have relied on for decades.

What Rule 14a-8(j) Still Requires

Despite the elimination of Division responses, companies must still comply with the procedural requirements of Rule 14a-8(j) when they intend to exclude a shareholder proposal. Under the rule, a company must:

1. File a notice of exclusion with the Commission no later than 80 calendar days before filing its definitive proxy statement and form of proxy.
2. Simultaneously provide the shareholder proponent with a copy of the company's notice.
3. Include in the notice: (i) the proposal itself; (ii) an "explanation of why the company believes it may exclude the proposal, which should, if possible, refer to the most recent applicable authority such as prior Division letters issued under the rule"; and (iii) a supporting opinion of counsel when the reasons for exclusion are based on matters of state or foreign law.

Rule 14a-8(j) is not otherwise prescriptive as to the level of detail that a company must include in its notice, and similar to the 2026 proxy season, companies will want to consider how the notice could be used for investor engagement.

Companies must submit these notices using the SEC's online Shareholder Proposal Form. The Division's shareholder proposal email address is no longer functional; any questions or correspondence to the SEC should also be submitted through the Shareholder Proposal Form.

For investment companies, notices must be submitted to the Division of Investment Management by email at IMshareholderproposals@sec.gov.

A More Limited Change Than It Appears

While the headline is striking, companies should recognize that the practical impact may be more limited than it initially appears. This change to the SEC's process is narrow: companies will not be able to receive a "no-objection" acknowledgment from the SEC that, by the Division's own admission, was not based on any substantive review of the company's legal position. During the 2026 proxy season, the Division expressly stated it would "not evaluate the adequacy of the representation or express a view on the basis or bases the company intends to rely on in excluding the proposal." In other words, companies were already making their own legal judgments; the Division's response was a procedural formality rather than a substantive endorsement.

Practical Implications

Similar to the 2026 proxy season, companies will need to weigh the strength of their legal analysis and the likelihood of litigation and other tactics from proponents. As seen in the 2026 proxy season, six shareholder proponents who disagreed with a company's exclusion determination resorted to judicial remedies. See the Jones Day Commentaries, "Shareholder Proposal Litigation Increases Following the SEC's Revised Rule 14a-8 Process" and "Recent Shareholder Proposal Litigation Underscores the Need for Shareholder Proposal Reform."

Companies will also need to consider how a decision to exclude a proposal may be publicized to shareholders—either through the SEC or voluntary proxy disclosure—and how that could impact scrutiny from investors and proxy advisors' recommendations.

Lastly, companies should closely monitor rulemaking, as "Shareholder Proposal Modernization" remains on the SEC's Reg Flex Agenda, and Chair Atkins has expressed a view that the shareholder proposal process may be more appropriately governed by state law. The SEC's incremental retreat from the shareholder proposal process—from no-action, to no-objection, to no response, and potentially to no federal role at all—foreshadows a fundamental restructuring or rescission of Rule 14a-8.