Institutional Shareholder Services , Inc. v. Securities

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 2, 2025 Decided July 1, 2025
No. 24-5105
I NSTITUTIONAL SHAREHOLDER SERVICES , I NC.,
APPELLEE
v.
SECURITIES AND EXCHANGE COMMISSION AND P AUL S.
ATKINS , IN HIS OFFICIAL CAPACITY AS CHAIR OF THE
SECURITIES AND EXCHANGE COMMISSION ,
APPELLANTS
NATIONAL ASSOCIATION OF M ANUFACTURERS ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-03275)
Paul W. Hughes argued the cause for appellant. With him
on the briefs were Michael A. Tilghman II, Andrew A. Lyons-
Berg, and Emmett Witkovsky-Eldred.
Elaine J. Goldenberg was on the brief for amici curiae
Former Commissioners and Staff of the Securities and
Exchange Commission in support of appellant.

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Niels C. Holch was on the brief for amici curiae Society
for Corporate Governance and National Investor Relations
Institute in support of appellant.
Jordan L. Von Bokern and Jeffrey B. Wall were on the brief
for amici curiae Chamber of Commerce of the United States of
America, et al. in support of appellant.
Jeffrey M. Harris argued the cause for appellee
Institutional Shareholder Services, Inc. With him on the brief
were Mari-Anne Pisarri and James F. Hasson. Matthew R.
Pociask entered an appearance.
Ryan P. Bates and Matthew Jacobs were on the brief for
amici curiae the Council of Institutional Investors, et al. in
support of appellee.
Before: HENDERSON , RAO and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LE C RAFT HENDERSON, Circuit Judge: This case
involves a challenge to the Securities and Exchange
Commission’s (SEC) interpretation of the word “solicit” in
section 14(a) of the Exchange Act of 1934. In the context of
corporate governance, shareholders vote on various proposals
that shape a company’s strategic direction and operations.
Given the volume and complexity of those shareholder votes,
institutional investors—which hold numerous shares across
numerous companies—often retain proxy advisory firms to
research proposals and issue voting recommendations tailored
to each investor’s specific criteria and investment strategy.
Beginning in 2019, the SEC began regulating proxy advisory
firms through an interpretation of section 14(a) that treated
their recommendations as “solicitations” of the proxy votes of

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institutional investors. Institutional Shareholder Services
(ISS), a leading proxy advisory firm, sued, arguing that it does
not “solicit” within the meaning of the Act. The district court
agreed and entered summary judgment for ISS. The National
Association of Manufacturers (NAM), an intervenor on behalf
of the SEC’s position, appeals. We affirm.
I. BACKGROUND
A. Statutory & Regulatory Background
Section 14(a) of the Securities Exchange Act prohibits
“any person, . . . in contravention of such rules and regulations
as the [SEC] may prescribe as necessary or appropriate in the
public interest or for the protection of investors, to solicit . . .
any proxy” regarding registered securities. 15 U.S.C.
§ 78n(a)(1). Since its enactment in 1934, that provision has
formed the statutory basis for a comprehensive set of SEC
regulations governing proxy solicitations. The Congress did
not define “solicit” in the Exchange Act. The SEC has thus
defined the term for itself. Since 1956, it has generally
described “solicit” and “solicitation” to include any
“communication to security holders under circumstances
reasonably calculated to result in the procurement, withholding
or revocation of a proxy.” 17 C.F.R. § 240.14a-1(l)(1)(iii);
Amendments to Proxy Rules, 21 Fed. Reg. 577-78 (Jan. 26,
1956). This case involves whether proxy voting advice
“solicits” a proxy within the meaning of section 14(a) of the
Exchange Act. Proxy voting advice is often given by proxy
advisory firms, which offer their clients research, analysis and
voting recommendations on shareholder proposals. See
Exemptions from the Proxy Rules for Proxy Voting Advice,
85 Fed. Reg. 55,082, 55,083 (Sept. 3, 2020). Proxy advisory
firms play a significant role in the modern securities industry.
They primarily serve institutional investors, which collectively
own a large proportion of the market value of publicly traded

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companies. See 85 Fed. Reg. at 55,123. The proxy advisory
market is largely shaped by only two firms, ISS and Glass
Lewis. See 85 Fed. Reg. at 55,127. As the district court
explored in greater detail, the SEC has issued various opinions
at different times regarding whether proxy-voting advice
constitutes “solicitation” under its definition. See ISS v. SEC,
718 F. Supp. 3d 7, 12-15 (D.D.C. 2024).
In September 2019, the SEC distributed guidance
suggesting that proxy advisory services constituted
“solicitation” under the proxy rules. Commission
Interpretation and Guidance Regarding the Applicability of the
Proxy Rules to Proxy Voting Advice, 84 Fed. Reg. 47,416,
47,417 (Sept. 10, 2019) (2019 Guidance) (citing 17 C.F.R.
§ 240.14a-1(l)(1)(iii)). The SEC then issued a notice of
proposed rulemaking to codify that interpretation.
Amendments to Exemptions from the Proxy Rules for Proxy
Voting Advice, 84 Fed. Reg. 66,518, 66,522 (Dec. 4, 2019).
The Commission issued its rule in September 2020.
85 Fed. Reg. at 55,082 (2020 Rule). It explained that the 2020
Rule was intended to “help ensure that investors who use proxy
voting advice have access to more complete, accurate, and
transparent information and are able to benefit from a robust
discussion of views” when voting. Id. at 55,122-23. The SEC
correspondingly amended its regulations to define “solicit” and
“solicitation” as:
[a]ny proxy voting advice that makes a
recommendation to a security holder as to its
vote, consent, or authorization on a specific
matter for which security holder approval is
solicited, and that is furnished by a person that
markets its expertise as a provider of such proxy
voting advice, separately from other forms of

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investment advice, and sells such proxy voting
advice for a fee.
Id. at 55,154; 17 C.F.R. § 240.14a-1(l)(1)(iii)(A). It excluded
from that definition advice given in response to an unprompted
request. 17 C.F.R. § 240.14a-1(l)(2)(v).
The SEC’s new interpretation meant that proxy advisory
firms had to file their proxy recommendations with the SEC as
proxy solicitations unless they could claim an exemption. The
Rule provided an exemption if a firm complied with three
conditions: (1) disclosing conflicts of interest and the steps
taken to address them; (2) adopting procedures to make their
proxy advice available to the companies that are the target of
that advice at least by the time the advice is disseminated to the
adviser’s clients; and (3) establishing a mechanism to inform
clients of the company’s response to the firm’s advice before
the applicable shareholder meeting. See 85 Fed. Reg.
at 55,154. The SEC amended the rule in 2022 to rescind the
latter two conditions. Proxy Voting Advice, 87 Fed. Reg.
43,168, 43,174 (July 19, 2022).1 The 2020 Rule also amended
the Notes to the antifraud provision of the regulations to
1 NAM and the U.S. Chamber of Commerce separately challenged
that volte face in the Western District of Texas and the Middle
District of Tennessee, respectively, arguing that the SEC’s 2022
rescission was arbitrary and capricious under the APA. Both district
courts disagreed. See Nat’l Ass’n of Mfrs. v. SEC, 644 F. Supp. 3d
342 (W.D. Tex. 2022); Chamber of Com. v. SEC, 670 F. Supp. 3d
537 (M.D. Tenn. 2023). The Fifth and Sixth Circuits split on the
question: the Fifth held that the rescission violated the APA and
partially vacated the 2022 Rule but the Sixth upheld the rule, finding
no violation. Contrast Nat’l Ass’n of Mfrs. v. SEC, 105 F.4th 802
(5th Cir. 2024) (partly invalidating rescission), with Chamber of
Com. v. SEC, 115 F.4th 740 (6th Cir. 2024) (upholding rescission).
That divide does not affect our analysis because neither decision
dealt with the SEC’s definitional rule at issue here.

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provide that a firm’s “failure to disclose material information”
about its proxy-voting advice can constitute a false or
misleading statement. 85 Fed. Reg. at 55,155; 17 C.F.R.
§ 240.14a-9.
B. Procedural Background
ISS initiated this action in October 2019 after the SEC
issued its 2019 Guidance, arguing that the agency had
unlawfully expanded “solicit” to encompass proxy-voting
advice and that the 2019 Guidance was improperly issued
without notice and comment. See J.A. 13-37. The district
court stayed the case at the parties’ request pending completion
of the SEC’s related rulemaking. See J.A. 6. After the SEC
adopted its 2020 Rule, the court lifted the stay and ISS filed an
amended complaint asserting six claims based on the
Administrative Procedure Act (APA), arguing that: proxy
advice is not solicitation under Section 14(a) (Count 1); the
SEC lacks statutory authority to regulate proxy advisers
(Count 2); both the 2019 Guidance and the 2020 Rule are
arbitrary and capricious (Counts 3 and 4); the two new
disclosure requirements infringe the First Amendment
(Count 5); and the 2019 Guidance is procedurally invalid
(Count 6). See J.A. 43-72. Later, the district court also granted
NAM’s motion to intervene. J.A. 10-11.
In June 2021, the SEC sought to hold the case in abeyance,
announcing its intention to revisit the 2020 Rule and suspend
its enforcement in the interim. The court again held the case in
abeyance. See J.A. 9. In November 2021, the SEC proposed
rescinding two of the 2020 Rule’s three exemption
conditions—those requiring advance disclosure of voting
advice to issuers (i.e., companies that issue publicly traded
securities) and access to issuer responses—while preserving
the definitional amendment and the conflict-disclosure

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provision. See Proxy Voting Advice, 86 Fed. Reg. 67,383,
67,387 (Nov. 26, 2021).
By March 2022, the SEC had yet to complete its
rulemaking process and sought a further stay, which ISS
opposed. The district court lifted the stay as to the definitional
amendment (as it was not expected to change in the new
rulemaking). See J.A. 10. The SEC later rescinded the two
exemption conditions, mooting two of ISS’s claims (Counts 3
and 5). See 87 Fed. Reg. at 43,174; ISS, 718 F. Supp. 3d at 17.
ISS’s challenges to the definitional amendment remained. The
district court later raised sua sponte whether ISS still had
standing and whether its claims were ripe for review. Id. The
SEC, NAM and ISS all moved for summary judgment.
The district court first determined that ISS had standing to
pursue its claims and those claims were ripe for review. Id. at
18-20. On the merits, it found that the SEC’s definitional
classification of proxy advice as solicitation was foreclosed by
the text of section 14(a). Id. at 20-24. Rejecting the SEC’s
reliance on a broad regulatory definition and more expansive—
and, as the court noted, “now rare”—dictionary meanings, the
court concluded that the term “solicit” could not reasonably be
stretched to include disinterested voting advice. Id. at 23, 29.2
Accordingly, it granted summary judgment to ISS on Counts 1
and 2 of the complaint. Id. at 29. It did not reach ISS’s
arbitrary-and-capricious claims (Counts 3 and 4). Id. at 29
n.10.
2 The district court used step one of the Chevron framework to review
the pertinent language. See id. at 21. Chevron has since been
overruled. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412
(2024). That change, however, does little to disturb the district
court’s decision because it found no statutory ambiguity and thus did
not accord the agency’s interpretation deference.

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Initially, both NAM and the SEC timely appealed.
J.A. 204, J.A. 205. The SEC dismissed its appeal in August
2024 (without explanation), leaving NAM as the sole appellant
defending the definitional change in the amended rule. The
district court had jurisdiction under 28 U.S.C. § 1331 and we
have jurisdiction under 28 U.S.C. § 1291.
II. JURISDICTION
Although not questioned by the parties, we have an
“independent obligation to assure ourselves that jurisdiction is
proper before proceeding to the merits.” Plains Com. Bank v.
Long Family Land and Cattle Co., 554 U.S. 316, 324 (2008).
Article III grants federal courts the power to adjudicate
only “Cases” and “Controversies.” U.S. Const. art. III, § 2.
“That power includes the requirement that litigants have
standing.” California v. Texas, 593 U.S. 659, 668 (2021). The
requirement “must be met by persons seeking appellate review,
just as it must be met by persons appearing in courts of first
instance.” Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 64
(1997). “[F]ederal courts of appeals lack jurisdiction if the
appellant has not shown standing to pursue the appeal.” Lewis
v. Becerra, 111 F.4th 65, 69 (D.C. Cir. 2024). A party that
properly intervenes “becomes a full participant in the lawsuit
and is treated just as if it were an original party.” Schneider v.
Dumbarton Devs., Inc., 767 F.2d 1007, 1017 (D.C. Cir. 1985).
“The Supreme Court has therefore concluded that an intervenor
may maintain an appeal even if the original party does not
appeal, as long as the intervenor has standing to invoke the
appellate court’s jurisdiction.” Ameren Servs. Co. v. FERC,
893 F.3d 786, 791 (D.C. Cir. 2018) (citing Diamond v. Charles,
476 U.S. 54, 68 (1986)).
The district court granted NAM’s motion to intervene as a
defendant based, in part, on its determination that NAM was
not required to establish its own Article III standing because it

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was seeking the same relief as the SEC.3 In this court, the SEC
dismissed its appeal, leaving NAM as the sole appellant.
Accordingly, NAM is now required to show it has
constitutional standing to invoke our jurisdiction. See Ameren
Servs. Co., 893 F.3d at 791.
Because NAM asserts associational standing on behalf of
its members, it must show that “(1) at least one of its members
3 Intervenors seeking relief broader than or different from that sought
by existing parties must possess constitutional standing, see Town of
Chester v. Laroe Ests., Inc., 581 U.S. 433, 440 (2017), but
intervenors that seek the same relief sought by at least one existing
party need not do so, see Little Sisters of the Poor Saints Peter &
Paul Home v. Pennsylvania, 591 U.S. 657, 674 n.6 (2020)
(explaining that the circuit court “erred by inquiring into
[intervenors’] independent Article III standing” when they sought the
same relief as the federal government, which “clearly had standing”).
That distinction is in tension with some of our court’s precedent
requiring an intervenor to demonstrate Article III standing even if
pursuing the same relief as an existing party. See, e.g., Yocha Dehe
v. Dep’t of the Interior, 3 F.4th 427, 430-32 (D.C. Cir. 2021)
(applying circuit precedent predating Little Sisters); Old Dominion
Elec. Coop. v. FERC, 892 F.3d 1223, 1232 n.2 (D.C. Cir. 2018)
(noting that Town of Chester alone did not require overruling circuit
precedent as to other types of intervenor); Crossroads Grassroots
Pol’y Strategies v. Fed. Election Comm’n, 788 F.3d 312, 316 (D.C.
Cir. 2015); Deutsche Bank Nat’l Tr. Co. v. FDIC, 717 F.3d 189, 193
(D.C. Cir. 2013); Fund for Animals, Inc. v. Norton, 322 F.3d 728,
732-33 (D.C. Cir. 2003). That tension has led to some confusion at
the district court level. E.g., Signal Peak Energy, LLC v. Haaland,
No. 24-cv-366, 2024 WL 3887386, at *3-4 (D.D.C. Aug. 21, 2024)
(discussing the conflict). The district court in this case did not
grapple with the issue and simply found that, because NAM sought
the same relief as the SEC, it did not need to establish Article III
standing. See Hearing Tr. at 38-39, ISS, No. 19-cv-3275 (D.D.C.
Oct. 29, 2024), Dkt. 77. We need not resolve that question because
NAM plainly must establish its own standing to press this appeal.

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has standing to sue in her or his own right, (2) the interests it
seeks to protect are germane to its purpose, and (3) neither the
claim asserted nor the relief requested requires the participation
of an individual member in the lawsuit.” Wash. All. of Tech.
Workers v. DHS, 50 F.4th 164, 175 (D.C. Cir. 2022) (quoting
Save Jobs USA v. DHS, 942 F.3d 504, 508 (D.C. Cir. 2019)).
There is no question that NAM satisfies the latter two
components; thus, we focus on the first.
To establish Article III standing on appeal, NAM must
demonstrate that at least one of its members has an injury fairly
traceable to the district court’s judgment that could be
redressed by a favorable ruling from this court. See West
Virginia v. EPA, 597 U.S. 697, 718 (2022) (quoting Food Mktg.
Inst. v. Argus Leader Media, 588 U.S. 427, 433 (2019)). To
qualify as an injury-in-fact, a harm must be “concrete and
particularized” and “actual or imminent.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992) (citation modified). In
determining whether a harm is sufficiently concrete, “history
and tradition offer a meaningful guide to the types of cases that
Article III empowers federal courts to consider.” Sprint
Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 274 (2008).
“[T]raditional tangible harms, such as physical harms and
monetary harms” are paradigmatic concrete Article III injuries.
TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). “[A]
material risk of future harm can [also] satisfy the concrete-
harm requirement” if equitable relief is sought. Id. at 435.
Here, NAM asserts that its members “suffer a direct,
concrete harm from the vacatur of regulations promoting proxy
voting based on accurate and reliable information,” which
allows members to gain more information from proxy advisers
and position themselves to respond to it. See Appellant Br. 4.
In district court, NAM submitted a declaration prepared by its
vice president of tax and domestic economic policy, which
stated that, among various purported harms, in 2018 “56% of

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[its members] . . . were having to divert resources from their
core business functions in order to respond to the actions of
proxy advisory firms” when seeking market investments.
J.A. 76. That was necessary, he said, because proxy advisory
recommendations could be “misleading or inaccurate,” lack
transparency, involve “undisclosed conflicts of interest,” and
effectively exclude NAM’s members from the decisionmaking
process of shareholder voting. J.A. 78-79. But according to
the declaration, “[t]he regulatory restraints imposed by the
[2020 Rule] would address the harms NAM members have
experienced,” J.A. 79, because the 2020 Rule would virtually
force any proxy adviser to seek an exemption under the Rule
(rather than become subject to the SEC filing requirements),
which in turn would require significant disclosures to NAM’s
members about their recommendations ahead of any vote. See
85 Fed. Reg. at 55,154. ISS agrees that, if the Rule were in
effect, it would be forced to seek an exemption to stay in
business. Oral Argument at 31:11.
That showing is sufficient to satisfy the requirements of
Article III. The vacatur of the 2020 Rule removes disclosure
obligations that NAM contends directly mitigated misleading
proxy advice, thereby reimposing the same monetary and
operational burdens its members previously faced.4 Those
harms are not intangible or only informational but have a direct
impact on NAM’s members’ businesses—a prototypical
injury-in-fact. Cf. TransUnion, 594 U.S. at 425. A decision
from this court reinstating the Rule would alleviate those harms
by restoring the framework that NAM alleges required proxy
advisers to provide timely, transparent disclosures.
Accordingly, NAM has standing to pursue its appeal.
4 Those obligations include disclosing conflicts of interest as adopted
by the 2020 Rule and left undisturbed by the 2022 amendment. See
85 Fed. Reg. at 55,154; 87 Fed. Reg. at 43,174.

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III. MERITS
NAM makes two claims on appeal. First, it contends that
the district court’s definition of “solicit” was overly narrow and
the SEC’s reading was within the bounds of its interpretive
authority. Second, it asserts that even if the district court’s
definition is correct, because “solicit” can mean “endeavor to
obtain,” advisory firms solicit proxies by seeking to obtain
client votes aligned with their recommendations.
We review a district court’s grant of summary judgment
de novo and, like the district court, will set aside the agency
action if it is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. 5 U.S.C. § 706(2)(A).
In considering whether an agency’s interpretation of its
governing statute is contrary to law, we must “exercise
independent judgment in determining the meaning of statutory
provisions.” Loper Bright, 603 U.S. at 394, 412-13; see also
Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 328 (2014) (“[A]n
agency may not rewrite clear statutory terms to suit its own
sense of how the statute should operate.”).5
5 Additionally, if an “agency is authorized to exercise a degree of
discretion” in defining statutory terms, our role under the APA is “to
independently interpret the statute and effectuate the will of
Congress subject to constitutional limits” by “recognizing
constitutional delegations, fixing the boundaries of the delegated
authority, and ensuring the agency has engaged in reasoned
decisionmaking within those boundaries.” Loper Bright, 603 U.S.
at 394-95 (citation modified). NAM argues that the SEC was
delegated authority to define the term “solicit” by a provision
empowering it to “define technical, trade, accounting, and other
terms used in this chapter, consistently with the provisions and
purposes of this chapter.” 15 U.S.C. § 78c(b); Appellant Br. 39-43.
We need not resolve whether “solicit” is the sort of term that
provision empowered the SEC to define. Regardless, the SEC’s
definition is not only incorrect as a matter of de novo statutory

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“We begin, as in any case of statutory interpretation, with
the language of the statute.” CSX Transp., Inc. v. Ala. Dep’t of
Revenue, 562 U.S. 277, 283 (2011) (citation omitted). Again,
section 14(a) prohibits “any person, . . . in contravention of
such rules and regulations as the [SEC] may prescribe as
necessary or appropriate in the public interest or for the
protection of investors, to solicit . . . any proxy” regarding
registered securities. 15 U.S.C. § 78n(a)(1). The Act itself
does not define “solicit” so we look to the “word’s ordinary
definition” at the time the Exchange Act was enacted in 1934.
CSX Transp., 562 U.S. at 284. “To determine the ordinary
meaning of a legal term, we may look to contemporaneous
dictionaries.” Greenbaum v. Islamic Republic of Iran, 67 F.4th
428, 432 (D.C. Cir. 2023) (citing Taniguchi v. Kan Pac.
Saipan, Ltd., 566 U.S. 560, 566-68 (2012)).
Contemporaneous dictionaries suggest that “to solicit” and
“solicitation” entail seeking to persuade another to take a
specific action. For example, Webster’s Dictionary defined
“solicit” to mean “[t]o make petition to; to entreat;
importune . . . now, often, to approach with a request or plea,
as in selling, begging, etc.” and “[t]o endeavor to obtain by
asking or pleading; to plead for . . . to seek eagerly or actively.”
Webster’s New International Dictionary of the English
Language 2393 (2d ed. 1934). It also could mean “to endeavor
to obtain by asking or pleading; to plead for; as, to solicit an
office, a favor, alms.” Id. The Oxford English Dictionary
defined the term as “[t]o entreat or petition (a person) for, or to
do, something; to urge, importune; to ask earnestly or
persistently.” 10 The Oxford English Dictionary 395 (1933).
An “obscure” secondary definition was “[t]o urge or press (a
matter).” Id. Other dictionaries gave “solicit” the same
understanding. See, e.g., 2 The New Century Dictionary 1764
interpretation but also beyond “the boundaries of [any] delegated
authority.” Loper Bright, 603 U.S. at 395 (citation modified).

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(1927) (“To make petition or request, as for something
desired.”). Legal dictionaries similarly reflected a sense that
solicitation involves advocacy on one’s own behalf. See, e.g.,
Solicit, Black’s Law Dictionary (3d ed. 1933) (“[t]o ask for
with earnestness, to make petition to, to endeavor to obtain, to
awake or excite to action, to appeal to, or to invite”);
A Dictionary of the Law 959 (1913) (“[t]o importune, entreat,
implore, ask, attempt, try to obtain”). In short, extending the
term “solicit” to encompass voting recommendations requested
by another would go beyond the 1934 meaning.
And the same is true today. Between a proxy adviser and
its client, it might be reasonable to say that the client “solicits”
the adviser’s recommendation but that interpretation does not
suggest that, in providing that recommendation, the adviser has
“solicited” the client’s vote. The adviser, although it holds
itself out to attract clients, does not initiate the exchange; it
provides advice only in response to the client’s request. In
other words, the solicitation runs in the opposite direction to
the one suggested by NAM. By contrast, a company director
who hopes to obtain a particular outcome from a particular vote
might “solicit” the proxy votes of shareholders in order to
achieve his goal. Based on that understanding, we conclude
that the ordinary meaning of “solicit” does not include entities
that provide proxy voting recommendations requested by
others, even if those recommendations influence the
requestors’ eventual votes.
Our conclusion is reinforced by the structure of the statute.
Section 14 supplies a broader set of provisions designed to
ensure the integrity of shareholder voting processes by
regulating the exercise of proxy authority. See generally 15
U.S.C. § 78n. The statute presupposes that proxy solicitation
involves parties actively seeking to secure votes or voting
authority. See id. Nothing in section 14 indicates that it was
intended to reach those entities that merely advise others how

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to vote, without themselves seeking votes or acting on behalf
of those who do. See id.
“[O]ther contextual clues” add to NAM’s problems.
Henson v. Santander Consumer USA Inc., 582 U.S. 79, 85
(2017). If the Congress in one provision uses a specific term—
in this case, “solicit”—and in neighboring provisions regulates
broader or different conduct using broader language, we may
infer that the Congress meant something different in its choice
of the specific term. Cf. id. at 85-86. That inference is
permissible here because the Exchange Act does contain more
expansive formulations in regulating other kinds of conduct.
For example, section 10(b) prohibits “any person . . . [t]o use
or employ . . . any manipulative or deceptive device or
contrivance” in connection with the purchase or sale of
securities. 15 U.S.C. § 78j(b) (emphasis added). Section 14(a),
in comparison, limits its reach to those who “solicit” proxy
votes, not simply those who might influence those votes or
provide recommendations. 15 U.S.C. § 78n(a)(1). More
broadly, as ISS accepts, see Appellee Br. 27, proxy advisers
also are subject to a different statute—the Investment Advisers
Act of 1940—which separately amended the statutory scheme
to include different standards for investment advisers who “for
compensation and as part of a regular business” issue “analyses
or reports concerning securities.” 15 U.S.C. § 80b-2(a)(11);
see generally 15 U.S.C. §§ 80b-1 et seq.
The role of a proxy in the context of shareholder voting is
also informative. A proxy is a formal authorization given by a
shareholder to another person to vote on his behalf. See Proxy,
Black’s Law Dictionary (3d ed. 1933) (“a writing authorizing
one to vote for another”). The concept entails agency: a person
solicits a proxy when he seeks to be, or to place someone else
in the position of being, an agent empowered to cast votes.
Communications that provide analysis or guidance upon
request, by contrast, do not involve such a relationship. They

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may affect how the principal votes but they do not seek to
supplant his authority to vote.
It is thus no answer to say, as the SEC did in its rulemaking
and NAM repeatedly emphasizes, that proxy advisers
“influence” shareholder votes or that they “affect” voting
outcomes. See 85 Fed. Reg. at 55,086; Appellant Br. 27-32.
That argument has surface appeal, particularly when
considering the modern proxy voting system. But it fails as a
matter of statutory interpretation. The question is not whether
proxy advisers are influential—that point is undisputed—but
whether the Congress chose to regulate influence or
solicitation. Influence, even substantial influence, is distinct
from solicitation.
NAM also argues that the district court improperly
injected an extratextual “interest-in-the-outcome requirement”
into section 14(a). Appellant Br. 52-58. Not so. The district
court properly interpreted the term “solicit” to reach only
conduct that involves seeking a shareholder’s vote, rather than
providing advice requested by a client. It did not introduce a
“test” for the intent of solicitors.
Nor do NAM’s alleged “dire consequences” result from
that clear definition. First, the SEC remains free to regulate
false or misleading information in solicitations. See 17 C.F.R.
§ 240.14a-9. That the term’s scope does not encompass
everything that might be persuasive to a shareholder is a
consequence of the statute’s reach, not a result of the district
court’s improper interjection. Second, there is nothing unusual
about the Congress limiting the scope of a statute to reach only
certain kinds of conduct—here, solicitation rather than
influence. Third, the SEC is separately empowered to regulate
the provision of proxy-voting advice through the Investment
Advisers Act, 15 U.S.C. §§ 80b-1 et seq., which imposes
fiduciary duties on most proxy advisory firms. See Appellee

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Br. 57-63. Fourth, inducing a shareholder to cast, withhold or
revoke a vote can still constitute solicitation if it meets the
statutory requirement of obtaining that action for the would-be
solicitor’s separate purpose. See 17 C.F.R. § 240.14a-
1(l)(1)(ii)-(iii). Fifth, NAM’s invocation of the rules governing
broker-dealers holding legal title to “street name” securities is
irrelevant—those rules simply ensure that proxy materials
reach a beneficial owner of securities—unless they become
active solicitors themselves. See 17 C.F.R. § 240.14a-2(a)(1);
see also 3 Thomas Lee Hazen, Treatise on the Law of
Securities Regulation § 10:68 (May 2025 update).
In sum, the best reading of section 14(a), grounded in the
ordinary meaning of “solicit” in its statutory context, is that the
term refers to a request for proxy authority or a directed plea to
exercise such authority in a particular manner. Proxy-voting
advice rendered by a third party for a fee falls outside that
definition. It is simply a recommendation. The SEC’s effort
to expand “solicitation” to include such advice cannot be
reconciled with the statutory text and its adoption of that
definition in the 2020 Rule was contrary to law.
* * *
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.

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