The problem the guidance addresses
An investor that owns more than 5 percent of a public company’s voting shares must report the holding to the SEC under Rule 13d-1. The form it files depends on why it holds the shares.
- Schedule 13G is the short form for a passive investor. By filing it, the investor certifies that it does not hold the shares “for the purpose of or with the effect of changing or influencing the control of the issuer”. It amends the filing within 45 days after the end of a calendar quarter in which there has been a material change.
- Schedule 13D is for an investor that cannot give that certification. It must state the purpose of its holding and any plans or proposals for the company, and it must amend the filing within two business days of a material change.
In February 2025 the SEC staff said that an investor that pressures management to make specific changes may be influencing control and may lose Schedule 13G status. Its examples include an investor indicating, directly or by implication, that it will not support the company’s director nominees unless the company adopts its recommendation.
Because implied pressure counted, and each case depended on all the facts and circumstances, a large investor could not be sure whether an ordinary meeting with a company would disqualify it from Schedule 13G. According to lawyers at Weil, several of the largest institutional investors paused or restructured their engagement with companies in response. Gibson Dunn reports that many institutional investors changed how they engaged, and that some canceled or delayed routine meetings or agreed only to listen.
What the SEC staff clarified
On 2 September 2026 the Division of Corporation Finance added three questions to its interpretations of Rule 13d-1. Each identifies contact that does not, on its own, disqualify an investor from Schedule 13G.
- A meeting the company requests. If the company invites the investor to discuss its views or votes on matters at a past or upcoming shareholder meeting, or asks why the investor voted as it did at a past meeting, taking part is less likely to be viewed as an attempt to influence control and does not by itself disqualify the investor (Question 103.13).
- A conversation with a proxy solicitor. An investor may discuss its voting views with a person soliciting proxies, meaning a person who asks shareholders for their votes ahead of a shareholder meeting, without being disqualified for that reason alone (Question 103.14).
- A question about the company’s filings. An investor that asks the company to clarify facts or statements in its filings, such as its proxy materials, is not disqualified solely for doing so (Question 103.15).
The February 2025 position remains in place, so an investor that pressures management toward specific changes may still have to file Schedule 13D. The SEC also states that its staff interpretations are not rules, regulations or statements of the Commission, that the Commission has neither approved nor disapproved them, and that they are not binding.
The interpretations are addressed to investors and impose no requirement on companies. Because the staff names the company’s invitation as a factor, Howard Dicker and Lyuba Goltser of Weil suggest that a company seeking these conversations extend the invitation itself and document that it did so. Wilson Sonsini advises companies and investors to treat the interpretations as helpful data points that do not guarantee Schedule 13G status, and to continue to initiate meetings with a prepared agenda.
The interpretations do not discuss their own benefits or risks. The summary below cites commentary and the rules that already apply.
Possible benefits
- More meetings before votes. Gibson Dunn writes that the guidance may help restore some of the dialogue between companies and shareholders that has diminished since the February 2025 guidance. It also notes that Question 103.14 appears to cover conversations with a dissident shareholder soliciting votes in a contested director election, so an investor can hear from both sides before it votes.
- Questions about disclosures. Gibson Dunn writes that Question 103.15 should reassure investors making ordinary checks before a vote, such as confirming how a governance provision or a compensation program works.
- A lower reporting burden. An investor that keeps Schedule 13G status does not have to disclose its purpose and plans on Schedule 13D or amend its filing within two business days of a material change.
Possible risks
- Pressure that other shareholders cannot see. Schedule 13D requires an investor that seeks to influence control to disclose its purpose, but the meetings the interpretations cover are private. Gibson Dunn notes that a conversation that begins within the interpretations can become disqualifying if the investor then presses management for specific changes. A 2016 note in the Columbia Law Review examined possible misuse of Schedule 13G by investors that intend to influence control.
- Information shared in private meetings. Other shareholders do not hear what a company tells these investors in private. Under Regulation FD, a company that discloses material nonpublic information to an investment adviser, or to a shareholder who can reasonably be expected to trade on it, must make that information public at the same time, or promptly if the disclosure was unintentional. The requirement does not apply if the recipient has agreed to keep the information confidential.
- Coordination between investors. Investors that agree to act together in acquiring, holding, voting or disposing of a company’s shares form a group, which is treated as owning all of its members’ shares for reporting purposes. Goodwin advises investors to consider whether conversations with other shareholders or proxy solicitors could involve coordination that raises separate legal issues.
Corviniti helps with SEC reporting and proxy filings
The interpretations change nothing in a company’s accounting. Under Question 103.15, however, an investor may now ask a company to clarify facts or statements in its filings without that request alone affecting its Schedule 13G status. Those questions concern the financial statements, disclosures and proxy materials the company has already filed.
Corviniti prepares and reviews 10-K, 10-Q, 8-K and proxy filings for public companies. We prepare the financial statements and related disclosures, review them against SEC requirements before they are filed, apply the rules on non-GAAP measures and key performance indicators, and respond to SEC comment letters. We also keep the reporting calendar and disclosure controls current.