Summary

  • Five securities-law scholars say Rule 14a-8 governs information in federal proxy materials and does not create substantive state-law corporate rights.
  • They dispute the SEC’s explanation for rescission; other commenters seek a longer review or support repeal only with safeguards.

A legal argument entered the SEC record

The SEC’s received-comments page lists a joint filing dated 13 October from John C. Coates, John C. Coffee Jr., James D. Cox, Merritt B. Fox and Joel Seligman. Their attached Shadow SEC Statement No. 16 opposes the proposed rescission of Rule 14a-8. The filing identifies Coates with Harvard Law School and as a former SEC General Counsel; the other signatories teach at Columbia, Duke and Washington University law schools.

Their central distinction is between the substance of corporate rights and the federal document through which shareholders communicate. The authors argue that Rule 14a-8 does not create a state-law right to compel company action or displace state corporate law. It determines when a shareholder proposal may appear in a company’s federally regulated proxy statement. Because Section 14(a) of the Exchange Act governs proxy solicitation and disclosure, they say the rule sits within the SEC’s authority over that communication channel. They also point to the non-binding character of proposals included under the rule.

That reading directly contests the SEC’s proposed rule’s legal rationale. The Commission says its authority does not extend broadly to corporate governance and that states and company documents should determine whether proposals belong in proxy materials. The five authors argue that the release does not adequately address the rule’s history, relevant judicial decisions or the practical consequences of withdrawal. They invoke the Administrative Procedure Act’s reasoned-explanation requirement and ask the Commission to withdraw the proposal. Those are the signatories’ legal claims; neither the comment file nor this filing decides them.

Other submissions show that disagreement is not simply for or against rescission. On 7 October, Boston Common Asset Management asked the SEC to double the 60-day comment period to 120 days and hold a public roundtable, saying the transition to state and company-document frameworks needs fuller examination. That request is not an SEC extension. A 2 October comment from The Native Claim Firm supports rescission if the SEC adds safeguards such as matter-by-matter voting choices, clearer descriptions and a transition bridge. The docket page still lists 20 November 2026 as the deadline and labels the rule proposed.

The comments therefore test both the SEC’s account of its authority and the adequacy of the record before the Commission makes a final choice. They are submissions in a pending rulemaking, not votes, findings or court decisions.

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