In a troubling development - as discussed in detail in Cooley's post (worth a quick read) - SEC Corp Fin Staff recently denied H&R Block's request to exclude a shareholder proposal to amend its existing proxy access bylaws on the basis of Rule 14a-8(i)(10) (substantially implemented) in circumstances that appear to undermine the series of no-action letters issued earlier this year (previously reported on here and here) that gave some comfort to corporates that companies may exclude proposals on "substantially implemented" grounds provided that certain core proxy access terms sought by the proposal had already implemented by the company despite differences in other terms.
Last year, H&R Block adopted a "3%/3-year/20% of the board" proxy access bylaw with a 20-holder aggregation cap and renomination restrictions in response to the same proponent's proxy access proposal - whereafter the proposal was withdrawn. The new proposal seeks a proxy access bylaw with the right to nominate the greater of 25% of the board and 2 directors; no aggregation cap; no renomination limitations; and other terms.
Stay tuned for more information and analysis, and access numerous additional memos and other resources on our Proxy Access and Shareholder Proposals topical pages.