United States v. Douglas Martin ( 2015 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0608n.06
No. 14-3999 FILED
Aug 27, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
GAS NATURAL INC., )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
RICHARD M. OSBORNE, ) DISTRICT OF OHIO
)
Defendant-Appellant. )
)
BEFORE: SILER, COOK, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Gas Natural Inc. brought this action to enjoin its
former chief executive officer (CEO), chairperson, and board member Richard M. Osborne from
soliciting its shareholders without complying with Section 14 of the Securities Exchange Act of
1934 (Act), 15 U.S.C. § 78n, and related Securities and Exchange Commission (SEC)
regulations. See 17 C.F.R. §§ 240.14a-1 to -21 (Regulation 14a). The district court determined
that Osborne’s letters to Gas Natural’s shareholders were solicitations that were required to be
registered with the SEC in accordance with Regulation 14a, and further found that Osborne
intended to wage a proxy contest to regain his position on Gas Natural’s board of directors. The
court enjoined Osborne from sending additional letters to shareholders without first registering
them with the SEC. We VACATE the injunction and REMAND for further proceedings.
I.
Gas Natural is a publicly traded holding company that operates natural-gas distribution
companies serving approximately 73,000 customers in seven states. (PID 1, 261.) On May 1,
No. 14-3999
Gas Natural Inc. v. Osborne
2014, Gas Natural’s board of directors removed Osborne as chairperson and CEO of the
company. (PID 1, 215.) The board also removed Osborne from the slate of directors it had
nominated for election to the board at the July 30, 2014 annual shareholder meeting. (PID 35.)
Following removal from his offices, Osborne sent a letter, dated June 12, 2014, to Gas
Natural’s secretary requesting a copy of the list of shareholders so that he could “solicit their
support to be reinstated to the Board”; Gas Natural provided the list a few days later. (PID 36,
40.) Osborne also filed suit against Gas Natural in state court seeking to enjoin Gas Natural from
holding the shareholder meeting, but Osborne voluntarily dismissed the suit on July 15, 2014, in
light of a tentative settlement. (PID 224, 282, 289.) Osborne refiled the suit on July 28, 2014,
after Gas Natural allegedly breached the settlement’s terms. (PID 291, 303.) The refiled action
sought to void—rather than enjoin—the imminent July 30, 2014 election. (PID 305.)
In his first letter to shareholders, dated July 9, 2014, Osborne criticized Gas Natural’s
management and “ask[ed] for [the shareholders’] help in running these greedy individuals out of
our company.” (PID 44.) He advised them that they would receive additional letters from him.1
1
The letter in full reads:
Dear Shareholder,
My name is Richard M. Osborne, former Chairman and CEO of Gas
Natural Inc. After saving the company from near bankruptcy, I was tossed out
because the attorney of our Derivative Lawsuit told our board members it would
be the easiest way to settle. Mark Kratz, Gas Natural’s current Securities
Attorney who represented me personally for 35 years and Mike Victor, Chairman
of the Compensation Committee, promised me three years severance for wrongful
discharge. They later reneged on this promise. Lawsuits are in process for the
$750,000 owed to me in earn-outs. I am also owed a minimum of $5,250,000 for
pipelines they have been using illegally.
The company is now being run by accountants. It is a disaster and
employee morale is at an all time low. Those in charge believe they can make a
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(Id.) On the same day, Osborne again wrote to Gas Natural’s secretary, noting that he had
previously requested a list of all shareholders so that he could “solicit their support in a proxy
contest,” and requesting the lists of non-objecting beneficial owners. (PID 42.) Gas Natural
provided the additional list two days later. (PID 36.)
At the July 30, 2014 shareholder meeting, the shareholders elected the board-nominated
directors, ending Osborne’s tenure on the board. (See PID 4.) In a second letter to shareholders,
Osborne referred to Gas Natural’s directors and officers as Nazis (and other derogatory names),
stated that “the company is broke,” and told shareholders that he would “keep [them] informed
on any developments within the company.” (PID 52.) Attached to the letter is a chart of “Gas
Natural’s possible exposure” to damages; the chart states that the figures provided are “only
estimates if everything in court would go our way.” (PID 53.) Osborne wrote a third letter to
shareholders criticizing the company’s rehiring of its former chief operating officer. (PID 55.)
Although the second letter was dated August 12, 2014, and the third letter was dated September
difference by pushing buttons. At the June 25th board meeting, cash flow was a
cause for concern. I suggested we take the Directors Fees from $5,000 to $2,000
to help in this matter. The directors instead chose to milk the company and
instead of giving the money to the share holders [sic] by granting themselves each
4,000 shares, the equivalent of $44,000 per director. Another example of their
antics, during the only meeting I ever missed due to a surgery in 2013, the
remaining board members raised the Directors Fees from $2,000 to $4,000.
I am asking for your help in running these greedy individuals out of our
company. You will receive additional letters from me in the future. If you have
your own concerns or complaints, please address them to me in writing to my
office or directly at [redacted].
Sincerely,
Richard M. Osborne
(PID 10.)
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9, 2014, both letters were mailed in the same envelope in mid-September 2014. (PID 337.)
Osborne did not file any of the three letters with the SEC. (PID 329, 335–36, 338.)
Gas Natural filed suit against Osborne, alleging that Osborne’s three letters to
shareholders were solicitations under Regulation 14a and seeking to enjoin him from making
further solicitations without first complying with the regulation. (PID 6–7.) Gas Natural also
alleged the letters were defamatory, but later voluntarily dismissed that count without prejudice.
(PID 7, 73.) Gas Natural simultaneously moved for a temporary restraining order and
preliminary injunction. (PID 20.)
At a hearing on the motion, Osborne testified that he filed the state-court action with the
initial purpose of delaying the shareholder meeting so that he could engage in a proxy fight.
(PID 323–24.) He stated that he refiled the suit to void the July 30, 2014 election, and requested
the state court to require Gas Natural to hold a new shareholder meeting. (PID 331; see also PID
305.) He further testified that Gas Natural typically holds its annual shareholder meetings in the
summer and that board members are elected at the annual meeting to one-year terms. (PID 332.)
Osborne admitted that he wanted to regain control of the company and that, in order to do that,
he had to explain to shareholders why the directors needed to be replaced. (PID 334–35; see also
PID 338.) He testified that to engage in a proxy fight the “first thing you got to do is get a proxy
solicitor” who does all the work, and that he contacted a proxy solicitor who declined the
employment. (PID 346–47, 356.)
Christopher J. Hubbert, Gas Natural’s corporate counsel, testified that it is typical in a
proxy contest to send shareholders “fight letters” that are critical of management in advance of a
formal request for a proxy, which indicates to shareholders that there is a looming proxy fight.
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He opined that, based on his experience, Osborne’s letters constituted solicitations under SEC
regulations. (PID 375–76.)
The district court heard testimony, advanced the trial on the merits, and entered a
permanent injunction. (PID 409.) The court found that Osborne intended to solicit Gas
Natural’s shareholders and did not abandon his solicitation efforts because he was seeking to
void the July 30, 2014 election via the state lawsuit. (PID 410–411.) The court thus determined
that the letters should have been filed with the SEC and that no exemption applied. (PID 410.)
The court enjoined Osborne from sending any unregistered letters to shareholders so long as he
maintains the state-court action seeking to void the July 30, 2014 election. The court noted,
however, that if the state-court case is resolved, the injunction will dissolve automatically, as the
facts will have changed. (PID 221.) Osborne now appeals.
II.
This court reviews the ultimate decision to grant an injunction for an abuse of discretion.
Planet Aid v. City of St. Johns, 782 F.3d 318, 323 (6th Cir. 2015). The district court abuses its
discretion where it commits “a clear error of judgment in the conclusion it reache[s] upon a
weighing of the relevant factors or where it improperly applies the law or uses an erroneous legal
standard.” Schlaud v. Snyder, 785 F.3d 1119, 1124 (6th Cir. 2015) (quoting United States v.
Haywood, 280 F.3d 715, 720 (6th Cir. 2002)) (internal quotation marks omitted). We review the
district court’s factual findings under the clearly-erroneous standard, King v. Zamiara, 788 F.3d
207, 217 (6th Cir. 2015), and its legal rulings de novo, including any First Amendment
conclusions. Planet Aid, 782 F.3d at 323.
The standard for a permanent injunction is essentially the same as for a preliminary
injunction except that the plaintiff must show actual success on the merits rather than a
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likelihood of success. Am. Civil Liberties Union of Ky. v. McCreary Cty., 607 F.3d 439, 445 (6th
Cir. 2010). A plaintiff seeking a permanent injunction must demonstrate that: (1) it has suffered
an irreparable injury; (2) remedies available at law are inadequate to compensate for that injury;
(3) an equitable remedy is warranted considering the balance of hardships between plaintiff and
defendant; and (4) the public interest would not be disserved by the injunction. United Steel,
Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union v. Kelsey-
Hayes Co., 750 F.3d 546, 559 (6th Cir. 2014), vacated on other grounds, No. 13-1717, 2015 WL
4538811 (6th Cir. July 28, 2015) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006)).
III.
Osborne contends: (1) the injunction is overbroad and thus violates his free-speech rights;
(2) the court erred in finding the letters subject to—and not exempt under—Regulation 14a; and
(3) the court erred in granting the injunction without finding irreparable harm. Because federal
courts normally “will not decide a [federal] constitutional question if there is some other ground
upon which to dispose of the case,” Bond v. United States, 134 S. Ct. 2077, 2087 (2014) (quoting
Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)), we address these issues out of
turn.
A.
Under Federal Rule of Civil Procedure 65(d), an order granting an injunction must
(1) state the reasons why it issued, (2) state its terms specifically, and (3) describe in reasonable
detail the acts restrained or required. In a bench trial, the court must make findings of fact and
state its conclusions of law. Fed. R. Civ. P. 52(a)(1). A district court must make specific
findings concerning the four injunction factors, unless the issue can be resolved on fewer factors.
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Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir. 1997); see also
Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982) (holding that a
“district court abuses its discretion when it grants a preliminary injunction without making
specific findings of irreparable injury to the party seeking the injunction, and such an injunction
must be vacated on appeal”). Absent the requisite findings and reasons for the injunction, this
court will vacate the injunction and remand for further proceedings. See Ford Motor Co. v. M.L.
Cottingham, Inc., 228 F.2d 911, 911 (6th Cir. 1955) (per curiam).
The district court here did not make findings regarding any of the permanent-injunction
factors. Gas Natural nevertheless contends that an express finding of irreparable harm is
unnecessary because Osborne “demonstrated the likelihood of future violation.” (Gas Natural
Br. 22.) An injunction is “unavailable absent a showing of irreparable injury, a requirement that
cannot be met where there is no showing of any real or immediate threat that the plaintiff will be
wronged again—a ‘likelihood of substantial and immediate irreparable injury.’” City of Los
Angeles v. Lyons, 461 U.S. 95, 111 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 502
(1974)). Thus, “[t]he purpose of an injunction is to prevent future violations.” United States v.
W.T. Grant Co., 345 U.S. 629, 633 (1953). The bases of Gas Natural’s argument and the district
court’s ruling are that Osborne solicited shareholders in anticipation of a proxy fight and the
solicitations are not exempt under section 14a-2(b)(1). (See Gas Natural Br. 20–21.) But as we
discuss below, Osborne’s solicitations are exempt.
B.
Section 14(a) of the Securities Exchange Act of 1934 makes it unlawful to solicit a proxy
“by the use of the mails or by any means or instrumentality of interstate commerce or of any
facility of a national securities exchange or otherwise,” in contravention of SEC regulations.
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15 U.S.C. § 78n(a)(1). Under Regulation 14a, generally, a solicitation for a proxy may not be
made unless a preliminary or definitive proxy statement, along with any soliciting materials, is
filed with the SEC, and each person solicited is provided with a copy of the filed statement.
17 C.F.R. §§ 240.14a-3, -6. The regulation defines “solicitation” as:
i. Any request for a proxy whether or not accompanied by or included in a
form of proxy:
ii. Any request to execute or not to execute, or to revoke, a proxy; or
iii. The furnishing of a form of proxy or other communication to security
holders under circumstances reasonably calculated to result in the
procurement, withholding or revocation of a proxy.
Id. § 240.14a-1(l)(1).
1.
The district court held that Osborne’s letters are solicitations under the third definition of
solicitation, § 240.14a-1(l)(1)(iii). Gas Natural does not argue the letters are solicitations under
the first two definitions. We thus confine our review to whether Osborne’s furnishing of the
letters to Gas Natural’s shareholders was, under the circumstances, reasonably calculated to
result in the procurement, withholding, or revocation of a proxy.
When interpreting a regulation, the court looks first to its plain and unambiguous
meaning, Baptist Physician Hosp. Org., Inc. v. Humana Military Healthcare Servs., Inc.,
481 F.3d 337, 344 (6th Cir. 2007), and if the regulation is unambiguous, the court’s task comes
to an end, Bates v. Dura Auto. Sys., Inc., 625 F.3d 283, 285 (6th Cir. 2010). If the regulation is
ambiguous, however, the court defers to an agency’s interpretation of its own regulation, if any,
unless the interpretation is plainly erroneous or inconsistent with the regulation. Summit
Petroleum Corp. v. E.P.A., 690 F.3d 733, 740–41 (6th Cir. 2012).
The parties seem to accept that the subjective intent of the person furnishing the
communication is dispositive under the third definition of solicitation, and the district court
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relied solely on Osborne’s testimony regarding his intent in finding that the first letter constitutes
a solicitation. However, that reading is at odds with the plain and unambiguous meaning of the
regulation. By its terms, the third solicitation definition requires a review of the “circumstances”
of the communication’s delivery. Moreover, “reasonably calculated” in this context focuses the
inquiry on the manner in which the communicator attempted to influence a shareholder’s proxy
decision from the perspective of the shareholder who received the material. See Broker–Dealer
Participation in Proxy Solicitations, 29 Fed. Reg. 341, 342 (Jan. 15, 1964) (stating that material
may constitute solicitation if it is delivered “in a manner likely to cause it to be considered by a
security holder in connection with his [or her] voting decision”). Whether a communication is a
solicitation “depends upon the nature of the communication and the circumstances under which
it was distributed.” Long Island Lighting Co. v. Barbash, 779 F.2d 793, 796 (2d Cir. 1985);
29 Fed. Reg. at 341–42; see also Sargent v. Genesco, Inc., 492 F.2d 750, 767 (5th Cir. 1974). In
short, “[t]he question in every case is whether the challenged communication, seen in the totality
of circumstances, is ‘reasonably calculated’ to influence” a shareholder’s decision to provide,
revoke, or withhold a proxy. Long Island Lighting, 779 F.2d at 796; Joslyn, SEC Release No.
50588, 83 SEC Docket 3127, 2004 WL 2387455, at *11 (Oct. 26, 2004).
In considering the totality of the circumstances, the court considers the contents of the
communication. See 29 Fed. Reg. at 342 (observing that “whether the material is of a nature
calculated to influence the voting . . . depends [in part] upon the content of the material”). And
although criticism of management is a factor to consider, see Capital Real Estate Inv’rs Tax
Exempt Fund Ltd. P’ship v. Schwartzberg, 917 F. Supp. 1050, 1059 (S.D.N.Y. 1996), the SEC
has stated that “it is clear . . . that shareholders doing nothing more than exchanging opinions
about the management’s performance would not be a solicitation.” Regulation of
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Communications Among Shareholders, 57 Fed. Reg. 48,276, 48,279 n.29 (Oct. 22, 1992)
(internal quotation marks omitted). Further, the conditions under which the communication is
distributed also are relevant. See id. These conditions may include whether there is an ongoing
proxy contest, whether there is or will be a request for a shareholders’ vote on a matter, and other
relevant events. See 29 Fed. Reg. at 342 (noting that “[w]here there is no [proxy] contest and the
stockholder has no decision as to whether he [or she] will send in [a] proxy or not, material not
on its face soliciting material . . . is unlikely to constitute soliciting material”). The timing of the
communication in relation to relevant surrounding circumstances should be considered as well.
Generally, “the further removed the statement is from an act of shareholder suffrage, the less
likely it is that the statement will leave its imprint upon that shareholder action.” Smallwood v.
Pearl Brewing Co., 489 F.2d 579, 601 (5th Cir. 1974); see also Brown v. Chi., Rock Island &
Pac. R.R. Co., 328 F.2d 122, 125 (7th Cir. 1964) (holding that the challenged advertisement was
not a solicitation in part because no shareholder meeting had been called and no proxies were
solicited).
Communications that do not directly request a shareholder to provide, withhold, or
revoke a proxy are nevertheless solicitations under the regulation if they “indirectly accomplish
such a result or constitute a step in a chain of communications designed ultimately to accomplish
such a result.” Long Island Lighting, 779 F.2d at 796. To read the regulation narrowly so as to
exclude communications that “are part of a continuous plan ending in solicitation and which
prepare the way for its success” would circumvent the Act’s objectives and leave the SEC
“powerless to protect shareholders.” SEC v. Okin, 132 F.2d 784, 786 (2d Cir. 1943).
Osborne maintains Okin and Long Island Lighting are questionable authorities and urges
us to interpret the regulation to apply only to communications that are “material to the subject
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matter” of the shareholder action for which proxies are solicited.2 But the July letter was
material to the pending shareholder meeting, and although Osborne’s first letter to shareholders
was not reasonably calculated to result in the procurement of a proxy, it was certainly reasonably
calculated to result in the revocation or withholding of proxies for the July 30, 2014 director
election. The district court found, based largely on Osborne’s testimony and the fact that he
sought to void the election, that the second and third letters were part of the same solicitation
campaign and thus subject to regulation. Because Osborne has not shown this finding is clearly
erroneous, Okin and Long Island Lighting have no bearing.
In the July 9, 2014 letter to shareholders, Osborne identifies himself as former chairman
and CEO of Gas Natural, and states that he was “tossed out” of the company even though he had
“sav[ed] the company from near bankruptcy.” After criticizing decisions made by the board, and
stating that the company “is a disaster,” Osborne “ask[s] for [shareholders’] help in running these
greedy individuals out of our company,” and informs shareholders they will receive additional
letters. (PID 44.) Fairly read, the letter can be understood as requesting shareholders to
withhold or revoke proxies for the then upcoming July 30, 2014 shareholder meeting at which
directors would be elected. The letter’s content and its timing in relation to the shareholder
meeting support the court’s finding that it is a solicitation. Indeed, Osborne admits “the July
letter was mailed close in time to an upcoming shareholder vote and actually urged shareholders
not to support the company’s slate of nominees.” (Osborne Br. 40.) To the extent the district
court thought Osborne’s letters were reasonably calculated to result in the procurement of a
2
Contrary to Osborne’s contention, this court in Radol v. Thomas, 772 F.2d 244 (6th Cir.
1985), did not reject the Second Circuit’s reading of solicitation. In that case, this court held that
tender offers were subject to 17 C.F.R. § 240.14d-3 and not to the “more extensive legal
disclosure requirements” in the proxy rules. Id. at 254–55. The court did not express an opinion
on the provision at issue here.
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proxy, rather than to withhold or revoke a proxy, we disagree. We may nevertheless affirm on
any grounds, including those not relied on by the district court. In re Omnicare, Inc. Sec. Litig.,
769 F.3d 455, 469 (6th Cir. 2014).
The district court also found that the second and third letters were subject to the
regulation because they were part of the same solicitation effort. (PID 411.) The court
acknowledged that the issue whether the second and third letters are solicitations was “a little
more complicated” because the election had passed by the time Osborne sent the additional
letters. In finding that the letters are solicitations, the court, in effect, determined that, although
Osborne sent the second and third letters after the July 30, 2014 election, there was one
solicitation period, and all three letters related to the July 30, 2014 shareholder meeting, because
Osborne sought through the state-court action to void the election and require a new election.
(PID 305.) The court assumed that if Osborne obtains the relief he requests, he would then have
the opportunity to solicit shareholder support in his behalf or to withhold or revoke proxies for
the board-nominated directors. Considering the nature of the letters and the circumstances under
which they were delivered, we uphold the court’s ruling that the letters are solicitations under
Regulation 14a.
2.
Osborne contends the district court erred in not finding the letters exempt under
Regulation 14a-1’s safe-harbor provision, section 14a-1(l)(2). The regulation provides, in
relevant part, that the term “solicitation” does not apply to:
(iv) A communication by a security holder who does not otherwise engage in a
proxy solicitation (other than a solicitation exempt under § 240.14a-2)
stating how the security holder intends to vote and the reasons therefor,
provided that the communication:
....
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(B) Is directed to persons to whom the security holder owes a fiduciary
duty in connection with the voting of securities of a registrant held
by the security holder[.]
17 C.F.R. § 240.14a-1(l)(2)(iv).
Osborne contends that, under state law, he owes a fiduciary duty to shareholders to
disclose perceived misdeeds by other directors. (Osborne Br. 40–41.) He fails, however, to
show that the alleged duty is “in connection with the voting of securities” held by the
shareholders. Further, the letters did not purport to inform the shareholders how Osborne
intended to vote.
3.
Realizing that the “literal breadth of the new definition of solicitation was so great as
potentially to turn almost every expression of opinion concerning a publicly-traded corporation
into a regulated proxy solicitation,” which “would raise serious questions under the [F]ree
[S]peech [C]lause of the First Amendment,” the SEC created an exemption for solicitations by
persons who do not seek proxy authority and “who are disinterested in the subject matter of a
vote.”3 57 Fed. Reg. at 48,278–79.
The regulation exempts from the filing and delivery requirements in sections 14a-3 and
a-6 any solicitation by a person “who does not, at any time during such solicitation, seek directly
or indirectly, . . . the power to act as proxy for a security holder and does not furnish or otherwise
3
The SEC elaborated that a disinterested person includes a person whose interest in the
matter to be acted upon “aris[es] from the ownership of securities . . . where the shareholder does
not receive extra or special benefits that are not shared pro rata by all other holders of the same
class.” Id. at 48,281. Special benefits do not include benefits from the person’s “employment
with the registrant.” Id. The SEC also refers to a disinterested person as a person with no
“substantial interest in the subject matter of the communication beyond the interest of such
person as a shareholder.” Id. at 48,278.
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request” a form of proxy. 17 C.F.R. § 240.14a-2(b)(1). However, the exemption is not available
to:
(i) The registrant or an affiliate or associate of the registrant (other than an
officer or director or any person serving in a similar capacity);
(ii) An officer or director of the registrant or any person serving in a similar
capacity engaging in a solicitation financed directly or indirectly by the
registrant;
(iii) An officer, director, affiliate or associate of a person that is ineligible to rely
on the exemption set forth in this paragraph (other than persons specified in
paragraph (b)(1)(i) of this section), or any person serving in a similar
capacity;
(iv) Any nominee for whose election as a director proxies are solicited;
(v) Any person soliciting in opposition to a merger, recapitalization,
reorganization, sale of assets or other extraordinary transaction
recommended or approved by the board of directors of the registrant who is
proposing or intends to propose an alternative transaction to which such
person or one of its affiliates is a party;
(vi) Any person who is required to report beneficial ownership of the
registrant’s equity securities on a Schedule 13D (§ 240.13d-101), unless
such person has filed a Schedule 13D and has not disclosed pursuant to Item
4 thereto an intent, or reserved the right, to engage in a control transaction,
or any contested solicitation for the election of directors;
(vii) Any person who receives compensation from an ineligible person directly
related to the solicitation of proxies, other than pursuant to § 240.14a-13;
(viii) Where the registrant is an investment company registered under the
Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), an “interested
person” of that investment company, as that term is defined in section
2(a)(19) of the Investment Company Act (15 U.S.C. 80a-2);
(ix) Any person who, because of a substantial interest in the subject matter of
the solicitation, is likely to receive a benefit from a successful solicitation
that would not be shared pro rata by all other holders of the same class of
securities, other than a benefit arising from the person’s employment with
the registrant; and
(x) Any person acting on behalf of any of the foregoing.
Id. By its terms, the exemption carves out communications that fall within the definition of
solicitation if during the solicitation period the person does not (1) seek directly or indirectly the
power to act as proxy or (2) deliver a form of proxy—unless one of the ten exceptions to the
exemption applies.
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Here, the exemption applies because Osborne effectively requested shareholders not to
execute proxies, did not request authority to act as proxy for another shareholder, and did not
send a proxy form to shareholders. Plainly, Osborne’s first letter, which is fairly understood as a
request to withhold or revoke proxies, is not a request to act as proxy for a shareholder. Without
identifying an enumerated exception to the exemption, the district court held that the exemption
does not apply to Osborne because the exemption does not “cover someone who is actively
engaged in a solicitation, which Mr. Osborne was [doing].” (PID 410.) However, a person who
“actively engage[s] in a solicitation” is not an enumerated exception.
During the hearing, in response to Osborne’s argument that none of the exceptions to the
exemption applies, the district court suggested that the ninth exception is applicable, stating that
if Osborne is successful in regaining his position on the board (and also in stacking the board
with directors who would be supportive of his views), he would receive benefits not shared pro
rata with other shareholders. (PID 396–97.) The court identified as such benefits the payments
Osborne is seeking in the state action for breach of contract. (Id.) But, assuming Osborne’s
breach-of-contract claims are valid, any damages award is not a “benefit from a successful
solicitation” but, rather, compensation for a legal injury. And, if the board were to settle
Osborne’s claim, any benefit would be a “benefit arising from the person’s employment.”
17 C.F.R. § 14a-2(b)(1)(ix). Regarding the sixth exception, Osborne testified that he owned less
than 5% of Gas Natural’s shares and thus he would not be required to report beneficial
ownership on a Schedule 13D, but the court deemed that testimony irrelevant. 4 (PID 351–52.)
4
The parties do not present any argument regarding whether Osborne should have filed
the letters with the SEC under section 14a-6(g). The section 14a-2(b)(1) exemption does not
include section 14a-6(g), which requires a person who “owns beneficially securities of the class
which is the subject of the solicitation with a market value of over $5 million” to file with the
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Because none of the exceptions to the exemption appear to apply, we conclude the court erred in
summarily rejecting Osborne’s arguments regarding the exemption.
On appeal, Gas Natural contends the fourth exception applies because Osborne intends to
be a nominee for director. (Gas Natural Br. 18–19.) But the exception applies if the person is a
nominee, not if he intends to become a nominee. Osborne is not a nominee, and could not have
been a nominee for director for election at the July 30, 2014 meeting, as the time period for
receiving nominations had closed. (PID 231, 237, 345, 347, 356, 388.) Moreover, his letters do
not seek support for his election to the board, but, rather, request shareholder nonsupport for the
board-nominated directors.
A person who relies on the section 14a-2(b)(1) exemption makes “an irrevocable election
to maintain exempt status throughout the relevant soliciting period.” 57 Fed. Reg. at 48,281.
Accordingly, such person “could not undertake, with respect to the same meeting or solicitation,
a regulated proxy solicitation regarding a matter that was the subject of the exempt solicitation
without rendering the prior solicitation activity in violation of the full panoply of the proxy
rules.” Id. In a typical case, a solicitation period ends and a new period begins when the
electoral action for which shareholder proxies are solicited has been completed or otherwise
concluded. See id.; see also 17 C.F.R. § 240.14a-4(d) (prescribing limits on proxy authority,
including limiting voting to the next annual shareholder meeting). In this case, however, the
court effectively determined that the solicitation period had not closed following the July 30,
2014 shareholder meeting, but instead remained open “so long as Osborne maintains his [state-
court] case wherein he seeks to overturn the election of the board members at the July 30, 2014
SEC a Notice of Exempt Solicitation, along with the solicitation materials within three days after
the solicitation is made. 17 C.F.R. § 240.14a-6(g).
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annual meeting and he seeks reinstatement to the board.” (PID 221.) As such, had Osborne
elected to invoke the exemption for the July 30, 2014 election period, which he contends he did,
he should be exempt during the extended period unless he takes action during the solicitation
period inconsistent with the exemption.
Gas Natural argues the exemption is unavailable to Osborne because he elected to engage
in a proxy fight and admitted to seeking support to replace the current board of directors and
regain his seat on the board. (Gas Natural Br. 18.) The record, however, supports that Osborne
sought to (1) solicit shareholders to withhold or revoke proxies for the July 30, 2014 election and
(2) obtain a judicial order invalidating the July 30, 2014 election and thereby regain his position
on the board. (PID 305.) Although Osborne wrote to the corporate secretary stating that he
wanted the list of shareholders “so I can solicit their support to be reinstated to the Board” and
testified that he wanted “to put forward a slate of [directors] who would be supportive” of his
views, he never directly or indirectly sought the power to act as proxy for another shareholder or
indicated that he would seek such authority for the July 30, 2014 election or a subsequent
election after his failed attempt to hire a proxy solicitor. (PID 40, 324.) Indeed, he did not take
steps to become a nominee for that election or any future election.5 Further, it is irrelevant under
the exemption that Osborne seeks a judicial decree nullifying the election, as that request for
judicial relief is not a solicitation.
There is no basis, then, to hold that Osborne somehow reversed his election because he
earlier intended to wage a proxy contest, acknowledged that his attacks on the board could aid
5
Even assuming he had testified he will seek proxy authority for the 2014 election,
shareholders cannot vote for him in that election because he is not a nominee. See 17 C.F.R.
§ 240.14a-4(d)(1) (a proxy cannot confer authority to vote for a director who is not a bona fide
nominee named on the proxy statement).
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Gas Natural Inc. v. Osborne
him in regaining his seat, and did not disavow an interest in a future proxy contest. Unless
Osborne actually solicits a proxy or falls within an exception to the exemption, he can operate
within the exemption during the July 30, 2014 solicitation period, even as extended by the court
due to the state lawsuit. We further note that although the district court held that the state-court
action effectively extended the July 30, 2014 election period, creating overlapping election
periods, the July 30, 2014 election period must eventually close—either as a result of the state-
court ruling or the election of directors at a subsequent election.6
C.
Because we decide this appeal on nonconstitutional grounds, we do not reach the First
Amendment issue raised. See Bond, 134 S. Ct. at 2087.
IV.
For these reasons, we VACATE and REMAND for further proceedings consistent with
this opinion.
6
At oral argument, the parties informed the court that the 2015 annual shareholder
meeting had occurred on July 30, 2015 and that shareholders had elected board members at the
meeting.
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