Different rules for different entities
For companies with securities registered with the SEC, soliciting proxies is governed by federal rules that generally require filed disclosure documents and prohibit materially false or misleading statements. Some limited communications are exempt, and in contested director elections at most of those companies both sides must use a universal proxy card listing all nominees. Private companies, nonprofits, and New York co-ops and condominiums are governed mainly by state law and their own bylaws, which set who can vote by proxy and how proxies are revoked and counted. In those settings, mistakes in procedure can be as costly as mistakes in the message.
Materials and coordination
Keep every version of solicitation materials, scripts used by proxy solicitors, and communications with shareholders, including emails and social media posts that might count as soliciting. Bylaws, board minutes, and any shareholder agreements set the ground rules and should be reviewed early. If you are a dissident, be ready to show your lawyer when you began coordinating with others, because forming a group can trigger separate ownership disclosure duties at a public company. If you sit on the board, communications sent at company expense need to be checked against fiduciary duties as well as disclosure rules.
Where disputes go
Most proxy disputes are civil, brought by the company, shareholders, or the SEC, though deliberate fraud in a solicitation can draw criminal attention from the Justice Department. Challenges may come before the vote, seeking corrected disclosures, or afterward, contesting how proxies were counted or whether the meeting was properly called. Timing is tight either way, because courts are reluctant to undo a completed election. We begin by identifying the type of entity, the rules that govern it, the meeting date, and which communications have already gone out.
