The opinion of the court was delivered by: GREEN
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 617 F. Supp.]
Upon consideration of plaintiffs' motion for summary judgment, defendant's opposition thereto and cross-motion for summary judgment, plaintiffs' reply and opposition to the cross-motion, and the entire record herein, it is by the Court this 13th day of September 1985,
ORDERED that plaintiffs' motion for summary judgment is granted; it is further
ORDERED that defendant's motion for summary judgment is denied; it is further
ORDERED that the present percentage thresholds in Rule 14a-8(c)(12) be vacated and that defendant shall reinstate the previous percentages contained in the rule; it is further
ORDERED that an Opinion in this matter shall follow on Monday, September 16, 1985; and it is further
ORDERED that upon filing of the Opinion, this matter shall be dismissed.
Plaintiff filed the instant action for declaratory and injunctive relief, challenging the procedures used by defendant Securities and Exchange Commission ("SEC") in revising its Rule 14a-8. Plaintiffs alleged that a specific amendment to Rule 14a-8 was adopted without adequate notice, without adequate explanation or analysis of public comments, and without adequate support in the record. Complaint para. 1.
In general, Rule 14a-8 regulates the inclusion of shareholder proposals in proxy materials. 17 C.F.R. § 240.14a-8. The amendment in question involves Rule 14a-8(c)(12), which allows issuers to omit a shareholder proposal from their proxy materials in certain circumstances. Prior to the SEC's revision, Rule 14a-8(c)(12) read as follows:
If substantially the same proposal has previously been submitted to security holders in the issuer's proxy statement and form of proxy relating to any annual or special meeting of security holders held within the preceding 5 calendar years, it may be omitted from the issuer's proxy materials relating to any meeting of security holders held within 3 calendar years after the latest such previous submission:
Provided, That -- (i) If the proposal was submitted at only one meeting during such preceding period, it received less than 3 percent of the total ...