On January 16, 2015, SEC Chair Mary Jo White announced that she has directed the SEC staff to conduct a review of Exchange Act Rule 14a-8(i)(9) due to recent questions that have arisen about the proper scope and application of the rule. Rule 14a-8(i)(9) allows companies to exclude from their proxy materials shareholder proposals that directly conflict with management proposals. Chair White has asked the staff to report back to the SEC on its review.

Rule 14a-8(i)(9) was the basis of no-action relief granted to Whole Foods Market, Inc. by the SEC's Division of Corporation Finance (Division) in December 2014 (see Legal Update, SEC Grants Whole Foods No-action Relief on its Exclusion of a Proxy Access Shareholder Proposal). As a result of Chair White's mandate for a review of the rule, the Division has announced that it will express no views on the application of Rule 14a-8(i)(9) during the current proxy season and has withdrawn the previous no-action relief it granted to Whole Foods. Companies choosing to exclude shareholder proposals under Rule 14a-8(i)(9) this proxy season will need to do so without relying on SEC no-action relief.

To learn more about Rule 14a-8 shareholder proposals, see: