CLIENT ALERT: SEC Issues New Guidance Clarifying Ability of Schedule 13G Filers to Engage with Other Investors and Issuers

On September 2, 2026, the U.S. Securities and Exchange Commission (the “SEC”) issued new Corporation Finance Interpretations (“CFIs”) in Q&A format regarding how Schedule 13G filers can engage with other investors and issuers without jeopardizing their Schedule 13G eligibility. These CFIs address beneficial owners of more than five percent of an issuer’s equity securities that are required to file on Schedule 13D or 13G and who, among other things, do not hold the securities with the purpose or effect of changing or influencing the control of the issuer. The new guidance supplements earlier CFIs from February 2025 that broadly chilled engagement of both dissident investors and issuers with significant passive shareholders, thereby decreasing investor and issuer visibility into their views.

The new CFIs provide comfort that a shareholder generally may participate in the following discussions without becoming disqualified from reporting on Schedule 13G:

• Discussions with an issuer that are:
  • Initiated by the issuer;
  • Responsive to a request from the issuer to understand the shareholder’s voting decisions at previous meetings; or
  • Initiated by the shareholder solely to better understand the issuer’s disclosures or other public communications.
• Discussions with a dissident investor in a proxy contest regarding the shareholder’s views on a particular topic and how those views could inform the shareholder’s voting decisions.

We expect this guidance to be welcomed by 13G filers, activist investors and companies alike. The public company governance ecosystem benefits when shareholders can discuss their views with others in advance of a vote. The new CFIs should ease concerns from large investors that file Schedule 13Gs and want to maintain “passive” status, including investment managers with their own duties to investors, regarding their ability to engage with other investors and issuers, including in the course of a proxy contest, without risking disqualification from 13G filing eligibility.

The full text of the new CFIs is included below for reference.

Please contact the Olshan attorney with whom you regularly work or one of the attorneys below if you would like to discuss these developments further.

Question 103.13

Question: An issuer requests a meeting with a shareholder to discuss the shareholder’s views or voting decisions on matters that either were submitted for a vote at a past shareholder meeting or will be submitted for a vote at an upcoming shareholder meeting. If the shareholder reports its beneficial ownership of the issuer’s securities on a Schedule 13G in reliance on Rule 13d-1(b) or Rule 13d-1(c), can the shareholder participate in such a discussion without losing its eligibility to report on a Schedule 13G?

Answer: The context in which an engagement occurs is highly relevant to the determination of whether a shareholder is holding securities with a disqualifying purpose or effect of “influencing” control of the issuer. Generally, (1) an engagement initiated by the issuer itself or (2) a response to an issuer’s request to understand why the shareholder voted in a certain manner at a past shareholder meeting is less likely to be viewed as an attempt by the shareholder to “influence” control of the issuer. Therefore, participation in such a discussion would not, by itself, disqualify a shareholder from reporting on a Schedule 13G. The determination is based on all the relevant facts and circumstances. [September 2, 2026]

Question 103.14

Question: Can a shareholder reporting its beneficial ownership on a Schedule 13G in reliance on Rule 13d-1(b) or Rule 13d-1(c) participate in discussions with a person engaged in a proxy solicitation with respect to a particular issuer without losing its eligibility to report on a Schedule 13G?

Answer: The fact that a shareholder discusses its views on a particular topic and how those views could inform its voting decisions with a person engaged in a proxy solicitation would not, by itself, disqualify the shareholder from reporting on a Schedule 13G. [September 2, 2026]

Question 103.15

Question: A shareholder reporting its beneficial ownership on a Schedule 13G in reliance on Rule 13d-1(b) or Rule 13d-1(c) reviews the disclosures in an issuer’s filings, such as its proxy soliciting materials, and seeks clarification about particular facts or statements asserted in the filings. Would the shareholder lose its eligibility to report on a Schedule 13G if it contacts an issuer and seeks such clarification?

Answer: No. A shareholder would not be disqualified from reporting on a Schedule 13G solely because it engages with an issuer to better understand the issuer’s disclosures or other public communications. [September 2, 2026]

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