Professor Stephen Bainbridge, a leading corporate law scholar whose many publications are cited in opinions of Delaware’s Court of Chancery and Supreme Court, recently provided learned commentary about the latest guidance by the SEC on Rule 14a-8 regarding shareholder proposals.
The good professor provides citations and links to other commentary that suggests that this guidance, which reverses the published positions of the SEC over the last four years, now positions the SEC as engaging in a “wholesale abandonment of any assessment of relevance of a proposal to a company’s business (as compared to relevance to society at large.).”
Among other issues raised by the SEC arguably playing a new role akin to a SJW, Professor Bainbridge cites to a law review article by fellow corporate law titans who have explained why shareholders have a “First Amendment interest in not being forced to be associated with political speech that they do not support.” Lucian A. Bebchuk & Robert J. Jackson, Jr., Corporate Political Speech: Who Decides?, 124 Harv. L. Rev. 83, 113 (2010).
Prof. Bainbridge adds that: If that’s true about political speech by the corporation, as explained in the law review article by Bebchuk and Jackson, “shouldn’t it be even more true with respect to political speech foisted upon the corporation by government fiat regardless of whether the speech has any meaningful relationship to the company’s business?”