H&R Block had met its burden of establishing that it may exclude the proposal under Rule 14a-8(i)(10).

H&R Block's proxy access by-law compares favorably with the guidelines of the shareholder proposal.

Number of proxy access nominees. The proposal requested that the number of shareholder nominees should be one quarter of the directors then serving or two, whichever is greater. H&R Block argued that this provision is substantially similar to the existing by-law, which provides that the number of shareholder-nominated candidates cannot exceed 20% of the number of directors in office. The company noted that the current size of the board is 11 directors, meaning that, under the current by-law, no more than two shareholder-nominated candidates could appear in the company's proxy materials, and that the proposed changes would result in the same number of shareholder-nominated candidates being allowed in the proxy materials. The company also noted that companies have recently received no-action relief in the exclusion of proxy access proposals with this same proposed term when the company already limited the number of shareholder-nominated candidates to 20% of the number of directors in office.

Treatment of loaned shares. The proposal requested that loaned securities should be counted toward the ownership threshold if the nominating shareholder or group represents that it has the legal right to recall those securities for voting purposes, will vote the securities at the annual meeting, and will hold those securities through the date of the meeting. H&R Block argued that this provision is substantially similar to the existing by-law, which provides that loaned securities may be counted if they can be recalled on three business days' notice. H&R Block also noted that companies have been granted no-action relief in excluding proxy access proposals with similar proposed terms for recallable loaned shares when the company by-laws counted loaned shares recallable on three business days' notice towards the ownership threshold.

Aggregation of shares. The proposal requested that there be no limitations on the number of shareholders that can aggregate their shares. H&R Block argued that the existing by-law already allows for the aggregation of shares of up to 20 shareholders, and that prior no-action letters had granted relief to companies excluding proxy access proposals with unrestricted aggregation when the company already allowed for aggregation but limited the number of eligible shareholders who may aggregate ownership.

Renomination. The proposal requested that there be no limitation on the renomination of shareholder nominees based on the number or percentage of votes received in any election. The current by-law excludes prior nominees who withdrew from or became ineligible or unavailable for election, or who received less than 25% of the total votes cast, from being eligible for renomination for the next two meetings. H&R Block pointed out previously granted no-action relief under Rule 14a-8(i)(10) where a company's by-laws with regard to renomination included identical procedural limitations and restrictions as those in H&R Block's current by-law, even though the procedural limitations and restrictions were not contemplated by the proposals.