The Race to the Bottom, The Proxy Process and Rule 14a-8

The Race to the Bottom has long been a faculty-student partnership. Student pieces typically involve analysis of current cases, whether private actions or administrative proceedings. Often the cases involve decisions in Delaware and touch on fiduciary duties. They also commonly entail an examination of decisions interpreting the anti-fraud provisions under the federal securities laws, particularly Rule 10b-5.

The staff of the Blog have, however, decided to add yet another area for student review. The Blog intends to focus student analysis on no action letters issued under Rule 14a-8. The decision in part reflects the importance of shareholders proposals in the corporate governance process. The decision also, however, reflects a growing expertise by students at the DU Sturm College of Law with respect to the Rule.

In April of 2016, students at the Law School (and all members of the Blog) wrote eleven truly remarkable articles (all published collectively as an issue of the DU Online Law Review) on Rule 14a-8. Each piece addressed a single exclusion or procedural requirement of the Rule. The papers examined the administrative history of the provision and waded through the hundreds (sometimes thousands) of no action letters reflecting the staff's interpretation of the requirement. They end with policy recommendations. The papers are listed below.

Students will include a second issue on Rule 14a-8 in 2017 that will address additional exclusions and procedural requirements not already addressed. As a result of these efforts, students have developed an impressive understanding of the intricacies of Rule 14a-8. Posts examining SEC no action positions under Rule 14a-8 will build on this understanding.

The articles in the issue published in April 2016 include:

The Policy of Determining Significant Policy under Rule 14a-8(i)(7)

Adrien Anderson

Appealing No-Action Responses under Rule 14a-8: Informal Procedures of the SEC and the Availability of Meaningful Review

Courtney E. Bartkus

Rule 14a-8 and the Exclusion of Proposals that Violate the Law

Jason Haubenreiser

Issuer Opposition and Shareholder Disagreement: Rule 14a-8(m)

Alex Hinz

Shareholder Proposals, Director Elections, and Proxy Access: The History of the SEC’s Impediments to Shareholder Franchise

Nicole L. Jones

SEC Rule 14a-8(i)(5): Is it Still Relevant?