News & Events

Corporate Associate Yafit Cohn was quoted in a Bloomberg BNA article discussing recent SEC guidance regarding the excludability of shareholder proposals seeking modifications to certain provisions of issuers’ proxy access bylaws. The article examined a no-action letter issued by the SEC staff earlier this month to Oshkosh Corp., permitting the exclusion of a shareholder resolution seeking six enumerated changes to the company’s proxy access bylaw after the company implemented three of the six requested changes. Yafit commented that the fact that one of the three modifications made by the company was to lower the proxy access eligibility threshold from 5% to 3% stock ownership may have been critical to the Staff’s decision. She noted that, by reducing the share ownership threshold, Oshkosh achieved the essential objective of the proposal, which was to expand shareholders’ ability to use proxy access. Yafit further commented that, while each situation is unique, the Staff’s recent no-action responses to Oshkosh and other companies may suggest that issuers that have already adopted proxy access bylaws may not have many additional substantive grounds on which to try to exclude proxy access “fix-it” proposals from their proxy statements.

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