SEC Division of Investment Management staff letter: ClearBridge MLP and Midstream Fund Inc.-- Omission of Shareholder Proposal Submitted by Spencer McGowan Pursuant to Rule 14a-8

Feb. 18, 2021

February 10, 2021

Ryan P. Brizek, Esq.
Simpson Thacher & Bartlett LLP
900 G Street, N.W.
Washington, DC 20001

Re: ClearBridge MLP and Midstream Fund Inc. -- Omission of Shareholder Proposal Submitted by Spencer McGowan Pursuant to Rule 14a-8

Dear Mr. Brizek:

In a letter dated January 12, 2021, on behalf of ClearBridge MLP and Midstream Fund 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 if a shareholder proposal (the “Proposal”) submitted by Spencer McGowan, owner of McGowanGroup Asset Management Inc., is omitted from the proxy materials for the Fund’s 2021 annual meeting of shareholders.

The Proposal provides:

BE IT RESOLVED, that the shareholders of ClearBridge MLP and Midstream Fund Inc...., assembled at the annual meeting in person and by proxy, request that the Board of Directors…authorize and take all steps necessary to pursue a self-tender offer for at least 30% of outstanding common shares of the Fund at net asset value (“NAV”).

You request our assurance that we would not recommend enforcement action if the Fund omits the Proposal from the 2021 proxy materials for the next scheduled stockholder meeting of the Fund pursuant to Rule 14a-8 under the Securities Exchange Act of 1934.

There appears to be some basis for your view that the Fund may exclude the Proposal under Rule 14a-8(e)(2) because the Fund received it after the deadline for submitting proposals. Accordingly, we would not recommend enforcement action to the Commission if the Fund omits the Proposal from the 2021 proxy materials in reliance on Rule 14a-8(e)(2).

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 call me at (202) 551-6779.

Sincerely,

/s/ Karen Rossotto

Karen Rossotto
Senior Counsel
Division of Investment Management

Attachment cc: Spencer McGowan (via email)

Last Reviewed or Updated: March 5, 2021

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NEW YORK BEIJING HONG KONG HOUSTON LONDON LOS ANGELES PALO ALTO SÃ O PAULO TOKYO January 12, 2021 By Email to IMshareholderproposals@sec.gov Ms. Karen Rossotto U.S. Securities and Exchange Commission Division of Investment Management 100 F Street, NE Washington, DC 20549 Re: Exchange Act Rule 14a-8: Omission of Shareholder Proposal from the 2021 Proxy Statement of ClearBridge MLP and Midstream Fund Inc. Dear Ms. Rossotto:
We are counsel to ClearBridge MLP and Midstream Fund Inc. (the “Fund”), a closed-end management investment company registered under the Investment Company Act of 1940 (the “1940 Act”) and trading on the New York Stock Exchange under the ticker symbol “CEM”. On December 30, 2020, the Fund received a shareholder proposal and supporting statement (together, the “Proposal”) from Spencer McGowan, owner of McGowanGroup Asset Management Inc. (the “Proponent”), for inclusion in the proxy statement and related materials (the “Proxy Statement”) associated with the Fund’s 2021 Annual Meeting of Shareholders (the “2021 Annual Meeting”). For the reasons discussed below, in accordance with Rule 14a-8(j) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Fund hereby gives notice of its intention to omit the Proponent’s shareholder proposal from the Proxy Statement. The Fund hereby respectfully requests that the staff (the “Staff”) of the U.S. Securities and Exchange Commission (the “Commission”) confirm that it will not recommend enforcement action to the Commission if the Proposal is omitted from the Fund’s Proxy Statement for the reasons set forth herein.
I. Background
The Proponent submitted the Proposal to be included in the Fund’s Proxy Statement by letter dated December 29, 2020, attached hereto as Exhibit A (the “Proposal”). The Proposal stated:
BE IT RESOLVED, that the shareholders of ClearBridge MLP and Midstream Fund, Inc. (“CEM” or the “Fund”), assembled at the annual meeting in person and by proxy, request that the Board of Directors (“Board”) authorize and take all steps necessary to pursue a self-tender offer for at least 30% of outstanding common shares of the Fund at net asset value (“NAV”).

U.S. Securities and Exchange Commission
January 12, 2021
-2-
II. Summary of the Fund’s Position
The Fund believes the Proposal may be excluded from its Proxy Statement for the 2021 Annual Meeting pursuant to Rule 14a-8(e)(2) under the Exchange Act.
III. Discussion
a. Rule 14a-8(e)(2)
Pursuant to Rule 14a-8(e)(2) under the Exchange Act, a proposal submitted with respect to a company’s regularly scheduled annual meeting must be received by the company “not less than 120 calendar days before the date of the company’s proxy statement released to shareholders in connection with the previous year's annual meeting.” Rule 14a-8(e)(1) notes that the deadline for submission of stockholder proposals to the company can normally be found in the company’s proxy statement. The Fund’s 2021 Annual Meeting is scheduled to be held within 30 calendar days of the anniversary date of the Fund’s 2020 Annual Meeting of Shareholders (the “2020 Annual Meeting”), which was held on March 20, 2020. The Fund’s definitive proxy statement for the 2020 Annual Meeting (the “2020 Proxy Statement”) was dated February 10, 2020. Pursuant to Rule 14a-5(e), the Fund disclosed the deadline for submitting stockholder proposals for the 2021 Annual Meeting in its 2020 Proxy Statement, which stated that “[a]ll proposals by stockholders of the Fund that are intended to be presented at the 2021 Annual Meeting . . . must be received by the Fund for inclusion in the Fund’s proxy statement and proxy relating to that meeting no later than October 13, 2020.” This information appeared on page 21 of the Fund’s 2020 Proxy Statement. The Fund received the Proposal, dated December 29, 2020, on December 30, 2020, DSSUR[LPDWHO\HOHYHQZHHNVDIWHUWKHVXEPLVVLRQGHDGOLQH7KH6WD൵KDVFRQVLVWHQWO\WDNHQQRDFWLRQ SRVLWLRQVWRWKHH൵HFWWKDWLIDVKDUHKROGHUSURSRVDOLVQRWVXEPLWWHGE\WKHDSSOLFDEOHGHDGOLQHWKHQ it may be excluded. See, e.g., Lazard Global Total Return and Income Fund, Inc. (February 15,
2011) (stockholder proposal received three weeks after deadline may be omitted); CBS Corporation
(April 12, 2007) and IDACORP. Inc. (March 11, 2003) (stockholder proposal received three months after deadline may be omitted); France Growth Fund, Inc. (April 6, 2001) (stockholder proposal received two months after deadline may be omitted); Mexico Fund, Inc. (December 3, 1999) (stockholder proposal received four days after deadline may be omitted); Bull & Bear U.S. Government Securities Fund, Inc. (October 8, 1998) (stockholder proposal received eighteen days after deadline may be omitted); Bristol-Meyers Squibb Company (February 5, 1998) (stockholder proposal received three days after deadline may be omitted); and Peco Energy Company (December 29, 1994) and Lockheed Corporation (February 6, 1991) (stockholder proposal received one day DIWHUGHDGOLQHPD\EHRPLWWHG 7KH6WD൵DOVRKDVFOHDUO\LQGLFDWHGWKDWDFRPSDQ\PD\H[FOXGHD proposal if it receives mere notice of a proposal prior to its deadline, but does not receive the actual proposal until after the deadline. See, e.g., Duke Energy Corporation (February 19, 2004). Accordingly, the Fund believes that the Proposal may be omitted in its entirety from the Fund’s Proxy Statement pursuant to Rule 14a-8(e). b. Rule 14a-8(j)(1) If a company intends to exclude a shareholder proposal, Rule 14a-8(j)(1) under the Exchange Act provides that the company must file its reasons with the Commission no later than 80

U.S. Securities and Exchange Commission
January 12, 2021
-3- calendar days before it files its definitive proxy statement and form of proxy. The Staff may permit a FRPSDQ\WRPDNHLWVVXEPLVVLRQOHVVWKDQGD\VEHIRUHWKHFRPSDQ\¿OHVLWVGH¿QLWLYHSUR[\ statement and form of proxy with the Commission if the company demonstrates “good cause” for missing the deadline. The Fund intends to file its Proxy Statement for its 2021 Annual Meeting less than 80 calendar days from the date of this submission to the Commission. Nevertheless, the Fund EHOLHYHVWKDWLWZRXOGEHDSSURSULDWHIRUWKHVWD൵WRSHUPLWLWWRPDNHLWVVXEPLVVLRQZLWKLQWKH day period in situations such as this where the Fund has received a stockholder proposal DSSUR[LPDWHO\HOHYHQZHHNVDIWHUWKHGHDGOLQHVSHFL¿HGLQ5XOHDH

7KH)XQGKHUHE\ requests that the Staff waive the 80-day submission deadline requirement pursuant to Rule 14a￾8(j)(1) and consider accelerating its review of this submission.
IV. Conclusion
On the basis of the foregoing, the Fund requests the concurrence of the Staff that the Proposal may be excluded from the Proxy Statement, and that the no enforcement action will be recommended to the Commission if the Proposal is excluded in its entirety. The Proposal’s stated deficiencies cannot be remedied. Accordingly, the Fund was not required to send a 14-day notice to cure the eligibility deficiencies as described in Rule 14a-8(f)(1) under the Exchange Act. We would be happy to provide you with any additional information or answer any questions that you may have. Should you disagree with the conclusions set forth herein, we request the opportunity to confer with you prior to the determination of the Staff’s final position. Please do not hesitate to call me at 202-636-5806 or email me at Ryan.Brizek@stblaw.com if I may be of any further assistance in this matter. In accordance with the webpage of the Division of Investment Management of the SEC,1 the undersigned, on behalf of the Fund, has submitted a portable document format (pdf) copy of this letter and the exhibit referred to in this letter, via email to IMshareholderproposals@sec.gov. Also, in accordance with Rule 14a-8(j)(1), a copy of this letter and the accompanying exhibit are being forwarded to the Proponent, as formal notice of the Fund’s intention to omit the Proposal from the Proxy Statement. Very truly yours, Ryan P. Brizek Attachment cc: George P. Hoyt, Esq. David W. Blass, Esq. Debbie Sutter, Esq. 1 https://www.sec.gov/divisions/investment/imcontact htm.