SEC Staff Expands No-Action Relief for Retail Voting Programs

On September 29, 2026, the staff of the Division of Corporation Finance (the “Staff”) of the U.S. Securities and Exchange Commission (SEC) granted no-action relief to Tesla, Inc. (“Tesla”) for its proposed framework for issuer voluntary retail shareholder voting programs (each, an “IVRVP”) by public companies. Under an IVRVP, a participating retail shareholder may give a standing instruction to have its shares voted at each shareholder meeting in line with the recommendations of the issuer’s board of directors (a “standing instruction”).

The Staff stated that it will not recommend enforcement action in respect of Rules 14a-3(a), 14a-4(d)(2), 14a-4(d)(3), 14a-4(f), 14a-6(o), 14a-10, or 14a-12(a) under the Securities Exchange Act of 1934 (the “Exchange Act”) if Tesla implements the IVRVP as described in its no-action request letter. Significantly, the Staff added that its position applies to any issuer operating an IVRVP in the same manner described in Tesla’s letter.

The Tesla relief builds on, and is meaningfully broader than, the no-action relief the Staff granted to Exxon Mobil Corporation (“Exxon”) on September 15, 2025, for its retail voting program (the “Exxon RVP”). That no-action relief addressed only Rules 14a-4(d)(2) and 14a-4(d)(3), which generally prohibit a proxy from conferring authority to vote at more than one meeting. Tesla’s relief covers those two rules and also Rules 14a-3(a), 14a-4(f), 14a-6(o), 14a-10, and 14a-12(a). The framework proposed by Tesla also widens the program features available to issuers, including centralized “Hubs” for managing standing instructions, a “householding” opt-in across all of a shareholder’s accounts, and a persistent, account-specific opt-in.

The broader request appears designed, at least in part, to respond to rule-based objections raised after the Exxon letter. Following the Exxon relief, two shareholder advocacy organizations asked the Staff to reconsider and rescind that relief, arguing, among other things, that the standing proxy contravened Rule 14a-4(f) in addition to Rules 14a-4(d)(2) and (d)(3). Separately, two shareholder suits were filed, collectively alleging, among other things, that Exxon’s program invitation was an unlawful solicitation in violation of Rules 14a-3 through 14a-6, 14a-9 through 14a-12, and 14a-19. While Tesla’s no-action request letter did not seek relief for Rules 14a-3, 14a-4(a), (b), and (d)(1), 14a-5, 14a-6 (other than 14a-6(o)), 14a-9, 14a-11 and 14a-19, it, nonetheless, addressed Rules 14a-3, 14a-4(a), (b), and (d)(1), 14a-5, and 14a-6 (other than 14a-6(o)), stating its understanding that the Staff does not object to its views that those rules are inapplicable.

The discussion below summarizes the features the Tesla framework shares with the Exxon RVP, how it differs, the arguments Tesla advanced in support of relief, and the provisions for which Tesla did not seek relief.

Features in Common with the Exxon RVP

The core design of an IVRVP under the Tesla framework tracks the Exxon RVP. The key shared features relevant to issuers considering a retail shareholder voting program are as follows.

No fee: The program is available at no fee to participating retail shareholders, and opting out and overriding are likewise free.

Opt-in via standing voting instruction: Participation is voluntary. Retail shareholders must affirmatively opt in to the program by providing a standing instruction to vote their shares, on an ongoing basis, in accordance with the voting recommendations of the company’s board. Participants may choose to have the standing instruction apply to (1) all matters (“unqualified standing instructions”) or (2) all matters except contested director elections or any acquisition, merger, or divestiture transaction that requires shareholder approval under applicable state law or stock exchange rules (together with contested director elections, “special matters”) (“qualified standing instructions”).

Ability to opt out: Participants may opt out of the program and cancel their standing instruction at any time at no cost. Cancellation will, however, only apply to meetings for which the company has not yet filed a definitive proxy statement (i.e., future meetings).

Ability to override vote: Even though participants may only opt out of the program in relation to future meetings, they may at any time (and at no cost) override their standing instruction for any particular proposal or proposals by casting their vote using the proxy materials, identical to any other shareholder voting at that meeting.

Continuous receipt of proxy materials: Even after opting in to the program, participants will continue to receive all the company’s proxy materials for each meeting.

Annual reminders: Participants will receive at least annual reminders, during a period when the company is not soliciting votes, of their enrollment status, the standing instruction they selected, and their ability to opt out with respect to future meetings and to override their standing instruction.

Disclosure: The company will fully disclose the program and its features on its website and in its proxy statements, including the ability to override and opt out.

Filed program communications: Materials describing the program (and any material changes to them) (“program communications”) will be filed with the SEC under cover of Schedule 14A pursuant to Rule 14a-12.

Common communication channels: The company will communicate directly with registered owners, while banks, brokers, and plan administrators will communicate with beneficial owners via their shareholder communication service providers.

Voting Mechanics: The actual voting of shares under a standing instruction, and related administrative actions, will be facilitated by a vote processing agent. Votes are submitted after the company files its definitive proxy statement with the SEC and before that proxy statement is distributed to shareholders, and those votes are cast unless overridden by the shareholder. Information in the vote processing agent’s system relating to objecting beneficial owners stays within that system and will never be disclosed to the issuer as part of the program.

State-law authorization: Each company represented that the granting of a standing instruction is permitted under the law of its state of incorporation—Texas for Tesla (supported by a legal opinion) and New Jersey for Exxon. Referring to Section 212(b) of the Delaware General Corporation Law, the Exxon letter also notes that Delaware law permits standing instructions.

Meetings only: The programs cover voting at duly called annual or special meetings, not corporate actions taken by shareholder written consent.

How an IVRVP Differs from the Exxon RVP

Special Matter Reminders

Under the Exxon RVP, additional reminders similar to the annual reminders on enrollment status are required to be provided, ahead of meetings involving special matters, to participants that provided unqualified standing instructions. Under an IVRVP, those additional reminders will be provided to all participants prior to such meetings.

Additional Options Available to Issuers

The Tesla framework permits, but does not require, several features that were not part of the Exxon RVP. Tesla submitted that none of its analysis would differ if these options were offered.

Retail Shareholder Eligibility: While the Exxon RVP is available to all retail shareholders, except investment advisers exercising voting authority with respect to client securities, a company will have the option to make its IVRVP available to all retail shareholders or only to some retail shareholders. Unlike the Exxon no-action relief response letter, the Tesla response letter does not recite an exclusion for registered investment advisers exercising voting authority over client securities, although it states that it expresses no views on compliance with the Investment Advisers Act of 1940 or the Investment Company Act of 1940.

Hubs: Providers of shareholder communication services may host centralized management hubs for standing instructions (“Hubs”). A Hub may offer beneficial owners the opportunity to opt in to a specific issuer’s qualifying IVRVP, or to all qualifying IVRVPs established by issuers whose shares are in their accounts. Through a Hub, retail investors will be able to access each participating issuer’s filed program communications, and each issuer must still file its program communications under Rule 14a-12(b) notwithstanding its participation in a Hub.

Enrollment opportunities: Once a Hub is established and program communications are filed, retail investors may be offered the chance to participate when or shortly after they first become shareholders, or at any later time while the IVRVP is maintained.

Householding/all-accounts option: An issuer may allow a retail shareholder to give a standing instruction covering all of the issuer’s shares held in all accounts under the shareholder’s name from time to time, permitting a unified voting strategy across accounts.

Persistent particular-account elections: An issuer may allow a standing instruction to apply to a particular account from time to time, so that a shareholder who temporarily exits its position and later reacquires the issuer’s securities need not opt in again. Shareholders who select the persistent-account option will receive a notification, after reacquiring the issuer’s securities but before votes are cast for the next applicable meeting, that their votes will be submitted under their pre-existing standing instruction.

The Case for No-Action Relief

Tesla put forward the following arguments in making its case for relief. In general, it emphasized that participants retain the protections of the federal proxy rules for every meeting, with the overriding theme being that overrides and cancellation preserve each participant shareholder’s voting choice for each meeting.

Rules 14a-3(a), 14a-6(o), and 14a-12(a): Rule 14a-3(a) generally prohibits a solicitation before a proxy statement is furnished, while Rule 14a-12(a) permits a solicitation before a proxy statement is furnished if specified conditions are met, and Rule 14a-12(b) requires soliciting material to be filed no later than the date it is first used. Tesla argued that an IVRVP affords protections “generally consistent with” those the SEC contemplated in adopting Rule 14a-12. Program communications will be filed under cover of Schedule 14A pursuant to Rule 14a-12(b) no later than first use; will tell shareholders where to find more information about the IVRVP (including the issuer’s role), via linked website disclosure; will carry a prominent legend directing shareholders to read the proxy statement when available; and will not obtain votes on specific proposals. A definitive proxy statement will also continue to be provided before or with the proxy card for each vote. Tesla submitted that, taken together, these safeguards strike the balance the SEC sought in Rule 14a-12 and achieve the intent of Rule 14a-6(o), which requires that solicitations before providing a proxy statement must be made in accordance with Rule 14a-12.

Rule 14a-4(f): Rule 14a-4(f) prohibits delivering “a form of proxy, consent or authorization” unless the holder has concurrently or previously received a definitive proxy statement. Tesla argued that this phrase should be read consistently with “form of proxy” in Rules 14a-4(a) and (b). Under that reading, Tesla opined that a standing instruction is not covered because it does not address specific matters; it only sets a default voting position for future meetings, which can be overridden for any meeting or matter and cancelled at any time at no cost. In any event, Tesla noted, program communications will be filed under Rule 14a-12(b), and before each meeting compliant proxy cards will be delivered with or after a definitive proxy statement and will allow shareholders to override their standing instructions. As a result, standing instructions do not raise the concerns that Rule 14a-4(f) was designed to address.

Rules 14a-4(d)(2), 14a-4(d)(3), and 14a-10: Citing SEC releases, Tesla noted that Rule 14a-4(d)(2) was intended “to prevent the premature solicitation of proxies at a time when material information has not yet become available,” and that Rule 14a-4(d)(3) codified related interpretations. Tesla argued that participants are protected by receipt of proxy materials for each meeting; the ability to override by voting on each item on a compliant proxy card; at-least-annual reminders; free cancellation for future meetings; and filed, legended program communications. Because standing instructions do not “lock in” the proxy or the vote, Tesla argued, they provide the protections these rules were designed to provide and do not constitute an undated or postdated proxy under Rule 14a-10(a) or a proxy deemed dated after signing under Rule 14a-10(b). Exxon had made a related argument for Rules 14a-4(d)(2) and (d)(3), reasoning that a participant’s choice to leave its instruction in place is “a reaffirmation or renewal” of the instruction.

Provisions for Which No-Action Relief Was Not Sought

Tesla identified several rules for which it did not seek relief, stating its understanding that the Staff does not object to its views. The Staff’s no-action letter does not separately address these views and expressly declines to express views on compliance with other provisions of the federal proxy rules. Tesla expressed the following views on those rules:

• Rule 14a-3(b). Because Rule 14a-3(b) applies only when a proxy statement is furnished under Rule 14a-3(a), Tesla viewed it as inapplicable to standing instructions and program communications.
• Rules 14a-4(a) and (b). These rules prescribe the content of a “form of proxy.” Tesla’s position is that standing instructions are not “forms of proxy” because they do not address specific matters to be acted upon but rather set default positions that can be overridden or cancelled. Tesla further noted that meeting-specific proxy cards complying with these rules will be delivered with or after the definitive proxy statement before each meeting.
• Rules 14a-4(d)(1). A standing instruction should not be considered a proxy conferring authority “to vote for the election of any person to any office for which a bona fide nominee is not named in the proxy statement.”
• Rules 14a-4(d)(4). A standing instruction should not be considered a proxy conferring authority “to consent to or authorize any action other than the action proposed to be taken in the proxy statement.”
• Rule 14a-5 and Rule 14a-6 (other than Rule 14a-6(o)). Neither standing instructions nor program communications are proxy statements; program communications will instead be filed under Rule 14a-12(b) with appropriate legends.

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