Comment Letter on Rule 14a-8(I)(10), Securities & Exchange Commission, June 18, 2015

This letter focuses on SEC interpretations of Rule 14a-8(i)(10). The provision allows issuers to exclude shareholder proposals that have been “substantially implemented.” This has traditionally been used to allow for the exclusion of proposals rendered “moot” by the company’s actions. Companies, however, need not implement the shareholder proposal “exactly.” As a result, the staff is often asked to determine whether changes made by the company are substantial. The comment letter discusses positions taken by the staff where the company adopts a proposal asking that shareholders with a specified percentage of shares have the right to call a special meeting but limits eligible shares to those held for a specified period of time.

Double Reasonableness and the Fourth Amendment

Recently the Supreme Court has placed new limits on both the substance of the Fourth Amendment and the exclusionary that serves as the principal remedy for Fourth Amendment violations. In this Article we briefly summarize these limitations and then argue that the curtailment of the exclusionary rule has the potential to ameliorate substantive Fourth Amendment doctrine. The limited reach of the modern exclusionary rule provides the Court with license to develop an expansive new substantive framework free of the specter of a correspondingly expansive remedial framework. One point on which nearly all jurists and commentators agree is that current Fourth Amendment doctrine is a mess. We argue that the Court’s exclusionary rule cases, while frustrating and ill-conceived if viewed in isolation, provide the Court with an opportunity to revisit problematic Fourth Amendment doctrine that was born under a very different remedial regime. Such an approach would allow the Court to adhere to its current view of the exclusionary rule as a remedy of last resort while creating a Fourth Amendment with teeth. The goal is a Fourth Amendment right that is more substantial and clearly defined, but a remedy that remains limited to egregious violations of clear substantive rules. The time is now to lift the Fourth Amendment fog.

Comment on Rule 14a-8(i)(9), Securities and Exchange Commission, June 30, 2015

The Securities and Exchange Commission has been analyzing its interpretation under Subsection (i)(9) of Rule 14a-8. This provision allows for the exclusion of shareholder proposals that conflict with those submitted by management. The staff has been examining its interpretation since instructed to do so by the chair of the SEC following a no action appeal in a case involving Whole Foods. A number of letters and memos submitted in connection with the review have analyzed the issue. At least one asserted that any change in interpretation required the Commission to go through the process of notice and comment. This letter asserts that notice and comment is not required, relying extensively on Perez v. Mortgage Bankers Association.