RegAlertIndividual decision · SEC · 8 Mar 2024
SEC Division of Investment Management staff letter: BNY Mellon Municipal Income, Inc. – Omission of Shareholder Proposal Submitted by Saba Capital Management, L.P., on behalf of Saba Capital Master Fund, Ltd., Pursuant to Rule 14a-8
The staff of the Division of Investment Management declines to concur with BNY Mellon Municipal Income, Inc.'s view that a shareholder proposal regarding board declassification may be excluded from proxy materials under Rule 14a-8(i)(3). Consequently, the staff cannot assure the Fund that it would not recommend enforcement action to the Securities and Exchange Commission if the Fund omits the Proposal or portions of the supporting statement from its 2024 annual meeting proxy materials. The Fund had argued the Proposal contained materially false and misleading statements contrary to Rule 14a-9.
March 8, 2024
March 8, 2024
David Stephens
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036-8299
Re: BNY Mellon Municipal Income, Inc.
Omission of Shareholder Proposal Submitted by Saba Capital Management, L.P., on behalf of Saba Capital Master Fund, Ltd., Pursuant to Rule 14a-8 under the Securities and Exchange Act of 1934, as amended
Dear Mr. Stephens:
In a letter dated February 8, 2024, on behalf of BNY Mellon Municipal Income, Inc. (the “Fund”) you requested confirmation from the staff of the Division of Investment Management that it would not recommend enforcement action to the Securities and Exchange Commission (the “Commission”) if a shareholder proposal and supporting statement (the “Proposal”) submitted by Saba Capital Management, L.P., on behalf of Saba Capital Master Fund, Ltd. (the “Proponent”) on December 29, 2023 is excluded from the proxy materials for the Fund’s 2024 annual meeting.[1] The Proposal provides:
RESOLVED, that the shareholders of [the Fund] request that the Board of Directors of the Fund (the “Board”) take all necessary steps in its power to declassify the Board so that all directors are elected on an annual basis starting at the next annual meeting of shareholders. Such declassification shall be completed in a manner that does not affect the unexpired terms of the previously elected directors.
The Fund maintains that the Proposal may be excluded pursuant to Rule 14a-8(i)(3) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), because the Proposal contains materially false and misleading statements contrary to Rule 14a-9 under the Exchange Act.
We are unable to concur in your view that the Fund may exclude the Proposal under Rule 14a-8(i)(3). Accordingly, we cannot assure the Fund that we would not recommend enforcement action if the Fund omits the Proposal or portions of the supporting statement from its proxy materials in reliance on Rule 14a-8(i)(3).
Attached is a description of the informal procedures the Division follows in responding to shareholder proposals. If you have any questions or comments concerning this matter, please email imshareholderproposals@sec.gov.
Sincerely,
/s/ Emily Rowland
Emily Rowland
Senior Counsel
Division of Investment Management
Attachment cc: David DiPetrillo (via email)
Peter M. Sullivan (via email)
James Bitetto (via email)
Michael D'Angelo (via email)
[1] We also received a letter from the Proponent dated February 26, 2024.
Last Reviewed or Updated: March 11, 2024
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- Securities Exchange Act of 19341934 · US-LAW
“The Fund maintains that the Proposal may be excluded pursuant to Rule 14a-8(i)(3) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), because the Proposal contains materially false and misleading statements contrary…”
- Securities and Exchange Act of 1934Not in RegAlert
“Pursuant to Rule 14a-8 under the Securities and Exchange Act of 1934, as amended”
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