The staff of the Division of Corporation Finance of the Securities and Exchange Commission has issued three additional responses to company no-action requests to exclude shareholder-proposed amendments to proxy access bylaw provisions previously adopted by the company. Each of the three SEC responses states that the SEC staff does not believe that the company can exclude the shareholder proposals on the basis that either:

• the shareholder’s proposed amendments (which included three or five specific amendments) constitute more than one proposal and could therefore be excluded by the company in reliance on Rule 14a-8(c); or
• the company had substantially implemented the shareholder’s proposed amendments through its initial adoption of a proxy access bylaw that differed in its ancillary provisions from the amendments subsequently proposed by the shareholder.

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On March 14, 2016, the SEC issued a no-action letter [1] permitting holders of shares of common stock of a publicly traded REIT, or REIT shares, received in exchange for privately placed units of the REIT’s operating partnership, or OP units, to tack the holding period of the OP units to the REIT shares for purposes of Rule 144. This new position is a very significant change from the way Rule 144 has been interpreted historically by the SEC, and may lead to the elimination of registration rights in many OP unit transactions as well as to changes in the way OP unit transactions are structured.

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