11th Cir. Pattern Jury Instr. (Civil) 6.5

17 C.F.R. § 14a-9 – Solicitation of Proxies

[Name of plaintiff/The Securities and Exchange Commission, also known as

the SEC] asserts a claim under Section 14 (a) of the Securities Exchange Act of

1934.

The Securities Exchange Act is a federal statute that allows [the Securities

and Exchange Commission, also known as the SEC/the SEC], to enact rules and

regulations prohibiting certain conduct in the purchase or sale of securities. Section

14(a) of the Act makes it “unlawful for any person… in contravention of such rules

and regulations as the [Securities and Exchange] Commission may prescribe as

necessary or appropriate in the public interest for the protection of investors, to

solicit or to permit the use of his name to solicit any proxy or consent or

authorization in respect of any security.”

Rule 14a -9 forbids a person from soliciting proxies, consents, or

authorizations from security holders by any written or oral communication that, at

the time and in light of the circumstances under which the person makes it, is false

or misleading about any material fact, or which omits any material fact that is

necessary to make the communication not false or misleading.

For the purposes of Rule 14a-9, a “security” is generally a share of stock that

has the right to cast a vote in connection with the election of directors or approval

of corporate actions or transactions. A “proxy” is simply an authorization the

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holder of stock grants to vote that stock. Because shareholders usually can’t attend

shareholder meetings in person, most votes cast at those meetings are cast through

proxies that have been acquired from shareholders through a proxy solicitation. A

“proxy solicitation” is a communication to shareholders under circumstances

reasonably calculated to procure [, withhold, or revoke] a proxy. A “proxy

statement” is a document that must be sent to security holders whenever their votes

are solicited.

To prove a claim under Exchange Act § 14(a) and Rule 14a-9,

[Name of plaintiff/the SEC] must prove each of the following elements by a

preponderance of the evidence:

First, you must find that in soliciting proxies, either through a proxy

statement or other written or oral communication, [name of defendant] misstated or

omitted material information necessary to prevent the proxy solicitation from being

misleading.

Second, you must find that [name of defendant] was negligent in making the

material misstatement or omission.

[And third/Third], you must find that the proxy materials were an essential

link in the accomplishment of a corporate action or transaction.

[The fourth element is not required in cases brought by the SEC.]

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