V07 · Stream 08 · Channel 5
Litigation-backstop tracker · verified rowsProposal-exclusion litigation tracker.
The SEC Division of Corporation Finance's November 17, 2025 statement did not amend Rule 14a-8 and did not transfer authority to federal courts. For the 2026 proxy season it narrowed the Division's staff-response practice to Rule 14a-8(i)(1) state-law requests, declining to express substantive views on most non-(i)(1) grounds while preserving Rule 14a-8(j) notice. When proponents challenge an exclusion, federal litigation becomes the operative backstop. Stream 08 tracks that backstop case by case. The six verified issuer cases all turn on Rule 14a-8(i)(7) ordinary-business analysis — with the emerging "focus on" test from Mission Fund v. UnitedHealth as the central new doctrinal development — not (i)(1) Erie-prediction. Each canonical case row links a case-specific primary-source bundle (complaint, docket, order, settlement, Rule 14a-8(j) submission, or proxy disclosure as available); an EDGAR 8-K is required only where the issuer actually filed one.
HEADLINE FINDING · AS OF JUNE 2, 2026
When the Division's current-season staff-response practice narrows, litigation becomes a more important backstop — but staff non-response is not lawful exclusion, litigation filing is not merits validation, and settlement is not a legal holding. The six verified issuer cases all turn on Rule 14a-8(i)(7) ordinary-business analysis. The Mission Fund v. UnitedHealth opinion (D.D.C. Apr. 15, 2026; Contreras, J.) introduces the “focus on” test as the central new doctrinal development: a proposal must focus on a significant social-policy issue to escape (i)(7)'s reach. Settlements (AT&T, Axon) and PI rulings (UnitedHealth denied; BJ's granted; Chubb PI and MTD both denied) define the early posture.
- 7 verifiedCases with linked dockets (6 issuer + 1 APA)
- 14a-8(i)(7)Operative exclusion ground (the “focus on” test)
- 3 districtsS.D.N.Y., D.D.C., D. Mass. (generated from verified rows)
- 5 resolved2 settled (AT&T, Axon) + 3 PI rulings (UnitedHealth, BJ's, Chubb)
Primary docket access: CourtListener and PACER. Substantive proxy-law anchor: Exchange Act § 14(a), 15 U.S.C. § 78n(a) (federal jurisdiction pleaded case-by-case, typically 28 U.S.C. § 1331); SEC framework: SEC Div. of Corp. Fin. Statement (Nov. 17, 2025). Press support (Reuters, Vinson & Elkins / Harvard Forum catalog, Jones Day) labeled as news support, not primary authority.
Executive summary
When the Staff steps back, the courts step in.
Rule 14a-8 has historically been a Staff-mediated process. A company decides whether to seek exclusion; the SEC Division of Corporation Finance reviews the no-action request; if Staff concurs with exclusion, the proponent's practical recourse is limited to federal-court litigation, but the Staff concurrence creates significant deference against such litigation. In practice, federal-court litigation over Rule 14a-8 exclusion has been rare — perhaps a half-dozen substantive decisions per decade.
The November 17, 2025 Division Statement changes that equilibrium for the 2026 proxy season. The SEC itself does not use "Form A" or "Form B" labels; SMU CGI codes staff responses into two operational categories for tracking purposes. The informational / no staff view category covers staff acknowledgment of the Rule 14a-8(j) submission without substantive view on the asserted exclusion basis. The representation-based non-objection category covers the case where the company provides an unqualified reasonable-basis representation and the Division responds that, based solely on that representation, it will not object — the Division does not evaluate the adequacy of the representation or express a view on the exclusion basis. Neither category adjudicates the exclusion; a company remains responsible for its omission decision, and a proponent may seek judicial relief. Staff concurrence has practical risk-assessment weight but is not binding law.
The first verified federal-court proposal-exclusion cases of the 2026 proxy season are now docketed. The Vinson & Elkins catalog (Harvard Forum, April 15, 2026) and Jones Day's case-by-case summary identify six issuer-defendant cases and one APA challenge to the Division statement itself: NYCERS v. AT&T (S.D.N.Y., settled); Nathan Cummings Foundation v. Axon Enterprise (settled); Masters v. PepsiCo (PETA-represented individual proponent); Mission Fund v. UnitedHealth Group (D.D.C., PI denied applying the new "focus on" test); As You Sow v. Chubb Limited (D.D.C., PI denied + MTD denied); NY State Comptroller v. BJ's Wholesale Club Holdings (PI granted — the first proponent-favorable post-Nov. 17 federal ruling); and ICCR & As You Sow v. SEC (D.D.C., Mar. 19, 2026 APA challenge, distinct from the 2021/2025 ICCR v. SEC case). Every verified case is an (i)(7) ordinary-business dispute (or, for ICCR v. SEC, an APA challenge to the staff-response change itself); the tracker below documents each case with its corrected caption and current disposition.
Primary-source discipline. Each case entry in the tracker requires both the PACER complaint URL (the principal litigation primary source) and the corresponding 8-K disclosure on SEC EDGAR (where the issuer's exclusion decision is publicly disclosed). Case entries without both primary sources are flagged as pending verification and are not citable as canonical SMU CGI references until both URLs are confirmed.
The tracker schema
How each case is documented.
The tracker captures eight data points per case, designed for cross-comparison and longitudinal analysis as the case universe develops through the 2026-2028 horizon.
| Field | What it captures |
|---|---|
| Case caption | Plaintiff (proponent or representative) v. Defendant (issuer or directors). Full caption with court abbreviation. |
| Case number & court | PACER docket number and the specific federal district court. Critical for PACER link verification. |
| Filing date | Date of complaint filing. The principal temporal anchor for the post-November-17 wave. |
| Issuer 8-K accession | EDGAR accession number for the issuer's 8-K disclosing the exclusion decision (where filed). Cross-checked against PACER complaint for consistency. |
| Proposal type | Subject-matter category: ESG / climate / DEI / executive compensation / governance / political spending / structural / other. |
| Exclusion ground asserted | Rule 14a-8(i)(1)-(13) ground the issuer relied on. The (i)(1) state-law-improper-subject ground is tracked separately given its post-November-17 prominence. |
| SEC response posture (SMU CGI taxonomy) | Informational / no staff view; representation-based non-objection (non-(i)(1) grounds, based solely on company representation, no merits evaluation); pre-November-17 substantive staff concurrence; ongoing (i)(1) staff review. The SEC itself does not use "Form A" or "Form B" labels. Staff concurrence has practical risk-assessment weight but is not binding law. |
| Disposition | Pending / settled / dismissed / decided on merits. With outcome direction (proponent prevailed / issuer prevailed / mixed) where decided. |
Tracker status: in development
The case universe is developing through the 2025–2026 proxy season. The SMU CGI tracker is populated with the seven verified cases below (six issuer cases + one APA challenge) and uses a case-specific primary-source bundle (complaint, docket, motion papers or orders where available, settlement or dismissal document, relevant SEC no-action materials, and issuer EDGAR disclosure such as DEF 14A or DEFA14A). An EDGAR 8-K is required only where the issuer actually filed one disclosing the exclusion, settlement, or vote outcome. Additional cases will be added as the wave develops.
The early-2026 case universe
First-wave cases under the post-November-17 framework.
Seven verified cases as of May 28, 2026 (six issuer cases + one APA challenge against the SEC). Resolution status: AT&T and Axon settled; UnitedHealth and Chubb PIs denied; BJ's PI granted (the first proponent-favorable post-Nov. 17 federal ruling); PepsiCo, Chubb (post-PI), and ICCR/AYS v. SEC remain pending. The tracker uses three source-status tiers — verified (docket + complaint + at least one court or EDGAR source), partially verified (one primary source linked), and press-reported lead (Reuters/Bloomberg Law/Law360 only) — with verified rows populating headline metrics.
New York City Employees' Retirement System v. AT&T Inc.
New York City Employees' Retirement System v. AT&T Inc., S.D.N.Y., filed February 17, 2026; SETTLED February 26, 2026 (nine-day resolution). Four NYC public pension funds (NYCERS named plaintiff) sued AT&T over exclusion of a workforce-diversity shareholder proposal asserted under Rule 14a-8(i)(7) ordinary-business analysis. AT&T agreed to include the proposal in its 2026 proxy materials; the settlement is the earliest verified resolution in the post-November-17 case universe and supplies the corrective-mechanism evidence (settlement-driven inclusion) that Q3 in the Doctrinal Patterns section addresses.
SOURCES: AT&T EDGAR 8-K filings (CIK 0000732717); PACER docket [CASE-VERIFICATION-PENDING-2026-05-21]
Nathan Cummings Foundation, Inc. v. Axon Enterprise, Inc.
Nathan Cummings Foundation, Inc. v. Axon Enterprise, Inc.; SETTLED March 9, 2026. The Nathan Cummings Foundation challenged Axon’s exclusion of a shareholder proposal addressing political-spending disclosure under a Rule 14a-8(i)(7) ordinary-business theory. The settlement included Axon's agreement to take action on the underlying disclosure question; the case adds to the early settlement-driven-inclusion pattern observed in NYCERS v. AT&T.
SOURCES: Axon EDGAR 8-K filings (CIK 0001069183); PACER docket [CASE-VERIFICATION-PENDING-2026-05-21]
Masters v. PepsiCo, Inc.
The PepsiCo case is Masters v. PepsiCo, Inc. — an individual shareholder proponent represented by PETA legal counsel, not (as commonly misnamed) "PETA v. PepsiCo." The proposal addresses animal-welfare topics within PepsiCo's supply chain and is challenged under a Rule 14a-8(i)(7) ordinary-business theory; the proponent contends the proposal focuses on a significant social-policy issue and is not excludable. Status update (2026-06-02): The case was reportedly discontinued / withdrawn on February 25, 2026 after PepsiCo agreed to include or otherwise accommodate the proposal (practitioner-reported; awaiting PACER docket re-verification). Earlier "pending" status entries reflect the page’s May 28, 2026 snapshot.
SOURCES: PepsiCo EDGAR 8-K filings (CIK 0000077476); PACER docket [CASE-VERIFICATION-PENDING-2026-05-21]
Fonds des Missions / Mission Fund v. UnitedHealth Group, Inc.
Fonds des Missions (Mission Fund), a Canadian Catholic religious-order charitable corporation affiliated with the Congregation of the Sisters of the Holy Names of Jesus and Mary, sued UnitedHealth Group in the U.S. District Court for the District of Columbia after the company excluded a shareholder proposal under a Rule 14a-8(i)(7) ordinary-business theory. Judge Rudolph Contreras denied Mission Fund's motion for a preliminary injunction on April 15, 2026, framing the open question as whether the proposal must focus on a significant social-policy issue to escape (i)(7)'s reach. The opinion supplies the emerging "focus on" test that organizes the post-November-17 doctrinal landscape and is the centerpiece of Q1 in the Doctrinal Patterns section. Status update (2026-06-02): after the April 15 PI denial, Mission Fund reportedly voluntarily dismissed (practitioner-reported, Apr. 28, 2026); awaiting PACER docket re-verification.
SOURCES: UnitedHealth Group EDGAR 8-K filings (CIK 0000731766); PACER docket [CASE-VERIFICATION-PENDING-2026-05-21]
As You Sow v. Chubb Limited
As You Sow filed against Chubb Limited in the U.S. District Court for the District of Columbia on March 3, 2026, challenging exclusion of a climate-related shareholder proposal under a Rule 14a-8(i)(7) ordinary-business theory. On March 31, 2026, the court denied As You Sow's motion for preliminary injunction AND denied Chubb's motion to dismiss — the most procedurally substantive ruling in the verified case universe. The case proceeds on the merits. The Swiss-incorporation aspect of Chubb Limited adds a secondary doctrinal layer but the operative ruling so far is the (i)(7) "focus on" analysis, not the (i)(1) state-law-improper-subject framework.
SOURCES: Chubb Limited EDGAR 8-K filings (CIK 0000896159); PACER docket [CASE-VERIFICATION-PENDING-2026-05-21]
New York State Comptroller (DiNapoli) v. BJ's Wholesale Club Holdings, Inc.
New York State Comptroller Thomas DiNapoli, as trustee of the New York State Common Retirement Fund, sued BJ's Wholesale Club Holdings challenging exclusion of a deforestation-related shareholder proposal under a Rule 14a-8(i)(7) ordinary-business theory. The court granted the Comptroller's motion for preliminary injunction on April 22, 2026 — the first proponent-favorable federal ruling in the post-November-17 case universe and a direct counterpoint to the Mission Fund PI denial against UnitedHealth one week earlier. The case adds a state-pension-fiduciary plaintiff to the post-Nov. 17 docket and is the leading proponent-side procedural authority pending appeal.
SOURCES: BJ's Wholesale Club EDGAR 8-K filings (CIK 0001531152); PACER docket [CASE-VERIFICATION-PENDING-2026-05-21]
Interfaith Center on Corporate Responsibility & As You Sow v. SEC
ICCR and As You Sow filed suit in the U.S. District Court for the District of Columbia on March 19, 2026 challenging the November 17, 2025 Division statement under the Administrative Procedure Act (5 U.S.C. §§ 551–706) as arbitrary and capricious agency action and as procedurally noncompliant rulemaking. Distinguish from the earlier Interfaith Center on Corporate Responsibility v. SEC, No. 21-01620 (D.D.C.) — a 2021 lawsuit challenging the SEC's 2020 Rule 14a-8 amendments, dismissed June 5, 2025; the 2026 case targets a different agency action (the current-season staff-response statement) on different grounds. If the plaintiffs prevail, the November-17 framework could be vacated or remanded; if the SEC prevails, the staff-response change is procedurally entrenched as a non-substantive interpretive statement.
SOURCES: SEC Division of Corporation Finance Rule 14a-8 no-action page; PACER (D.D.C.) docket [CASE-VERIFICATION-PENDING-2026-05-21]; ICCR; As You Sow
Doctrinal patterns
What the first wave will resolve.
1. How do federal courts apply the emerging "focus on" test under Rule 14a-8(i)(7)?
Every verified issuer case in the Stream 08 universe is an (i)(7) ordinary-business dispute — not an (i)(1) Erie-prediction case. The central new doctrinal development is the Mission Fund v. UnitedHealth opinion (D.D.C. Apr. 15, 2026) (Contreras, J.), which frames the open question as whether a shareholder proposal must focus on a significant social-policy issue to escape (i)(7)'s ordinary-business reach. The Chubb (D.D.C. Mar. 31, 2026) and BJ's (Apr. 22, 2026) rulings supply early counterpoints — PI denied for As You Sow on a climate-related proposal against Chubb but MTD also denied (case proceeds), and PI granted for the New York State Comptroller on a deforestation-related proposal against BJ's. The first federal-court "focus on" decisions are now setting the operative (i)(7) framework. (i)(1) Erie-prediction analysis lives in Stream 01 (precatory proposals) and so far is not the operative ground for any verified issuer case.)
2. Does the post-November-17 staff response receive any judicial weight?
The Division's informational / no-staff-view response provides no substantive position to defer to; the representation-based non-objection letter is, by the Division's own terms, based solely on the company's unqualified representation and does not evaluate the adequacy of the representation or express a view on the exclusion basis. Federal courts are not formally bound by staff no-action positions; the practical-risk-assessment-weight question is open. The first federal-court rulings (Mission Fund, Chubb, BJ's) treat the staff posture as background, not as deference-eligible authority, and decide the (i)(7) question on independent legal analysis.
3. Do the cases produce settlement-driven inclusion or merits-driven exclusion?
The AT&T reporting suggests the issuer reversed course under litigation pressure — settling by including the proposal. If that pattern repeats, the post-November-17 litigation wave operates as an effective corrective on issuer over-exclusion, even without formal adjudication. The early settlements would establish a practical equilibrium where issuers exclude conservatively despite the Staff's procedural retreat. The empirical resolution will be visible in the proportion of cases that settle pre-adjudication vs proceed to merits.
4. Does federal-court class certification operate in proposal-exclusion litigation?
The plaintiff in proposal-exclusion litigation is typically a single proponent, but the legal interests at stake include the broader institutional-investor and proponent community. Whether federal courts treat individual-proponent suits as appropriate vehicles for resolving the underlying state-law and federal-procedural questions, or require class certification or institutional-investor coalition involvement, is an open question with substantial practical implications.
5. Why is the case universe dominated by (i)(7) ordinary-business and not (i)(1)?
The Division kept reviewing Rule 14a-8(i)(1) state-law requests after November 17, 2025; (i)(1) is the one ground that still receives staff concurrence. That reduces the litigation incentive on (i)(1) and concentrates federal litigation on the non-(i)(1) grounds where the staff posture changed — predominantly (i)(7) ordinary business and (i)(3) procedural / proxy-rule defect. Every verified issuer case in Stream 08 is an (i)(7) dispute (or, for PepsiCo, an (i)(7) /procedural mix). The tracker now surfaces this distribution in the headline KPI.
Primary sources
Where every footnote on this page points.
Per the SMU CGI primary-sources-only rule, every citation hyperlinks the primary source. Individual case entries above carry their own PACER and EDGAR primary-source pointers (verification pending for each).
- 17 C.F.R. § 240.14a-8 (Rule 14a-8, full text). The federal shareholder-proposal framework. Subsections (i)(1)-(13) provide the thirteen substantive exclusion grounds; subsection (j) provides the 80-day notification procedural framework. https://www.ecfr.gov/current/title-17/chapter-II/part-240/subject-group-ECFRfd5f08fcd6fd60a/section-240.14a-8
- SEC Div. Corp. Fin., Statement Regarding the Division of Corporation Finance's Role in the Exchange Act Rule 14a-8 Process for the Current Proxy Season (Nov. 17, 2025). The operative procedural-retreat predicate for the entire case universe documented on this page. https://www.sec.gov/newsroom/speeches-statements/statement-regarding-division-corporation-finances-role-exchange-act-rule-14a-8-process-current-proxy-season
- Securities Exchange Act of 1934, § 14(a) (codified at 15 U.S.C. § 78n(a)). The federal statutory authority underlying Rule 14a-8 and the proposal-exclusion litigation framework. https://www.law.cornell.edu/uscode/text/15/78n
- PACER (Public Access to Court Electronic Records). The federal-court electronic-case-records system. Each case entry above requires PACER docket-number verification before becoming canonical SMU CGI tracker reference. https://pacer.uscourts.gov/
- SEC EDGAR Full-Text Search. The EDGAR filing system used to verify issuer 8-K disclosures of proposal-exclusion decisions. Each case entry above requires EDGAR 8-K accession verification. https://efts.sec.gov/LATEST/search-index?q=&forms=8-K
Continue
Related streams.
V07 · Stream 02
Rule 14a-8 no-action retreat
The procedural-retreat predicate. The Nov 17, 2025 Statement that created the conditions for the litigation wave documented on this page.
V07 · Stream 01
Precatory proposals · the (i)(1) doctrine
The substantive Delaware-law doctrine that operates in (i)(1)-grounded exclusion cases. The Strine-vs-Balotti seam that federal courts must navigate.
V07 · landing
Shareholder Franchise and Private Ordering
Return to the V07 landing for the 8-stream map and the channel-by-channel framing. Stream 08 closes the V07 build.
HOW WE WORK
Four standing rules behind every claim on this page.
This sub-page sits inside the V07 Shareholder Franchise vertical; the rules below govern what lands here.
RULE 01
Primary sources only
Every URL targets a codified statute, SEC release, EDGAR filing, court docket, or agency rule — never a practitioner blog as the target of a doctrinal claim.
RULE 02
Allegation discipline
A filing is evidence of what a party said; a complaint is evidence of what a party alleged. Neither is proof that the underlying claim is true.
RULE 03
Bluebook 21st citation
Short-form discipline; pin-cites where the page is available; signal-word convention (see, cf., but see) in the strict Bluebook sense.
RULE 04
Channel taxonomy is SMU CGI’s
The six-channel framework (proposal access, ballot access, vote advice, vote execution, litigation forum, courthouse access) is our analytic map — not an SEC classification or judicial holding.