## Facts

- MONY Group, Inc., a Delaware insurance and financial services company, sought shareholder approval of a merger with AXA Financial, Inc.; Delaware law required approval by at least 51% of MONY’s shareholders.
- MONY’s management filed and distributed proxy materials and a proxy card under SEC rules for the merger vote.
- Institutional shareholders opposed the merger and planned to send MONY shareholders (1) a letter urging them to withhold approval and (2) an unaltered duplicate of MONY’s management proxy card reproduced on their own letterhead.
- The opposing shareholders sought and received a nonbinding, informal SEC staff response indicating qualified approval of distributing the duplicate card while relying on the exempt solicitation provision of Rule 14a-2(b)(1).
- MONY sued in the Southern District of New York and sought a preliminary injunction barring inclusion of the duplicate proxy card, arguing it was a “form of revocation” that eliminated the Rule 14a-2(b)(1) exemption and triggered proxy disclosure requirements.
- The district court denied injunctive relief, finding MONY unlikely to succeed on the merits.
- MONY filed an expedited interlocutory appeal under 28 U.S.C. § 1292(a)(1).

## Issues

1. Whether enclosing an unaltered duplicate of the issuer’s proxy card with an opposition letter constitutes furnishing a “form of revocation” under SEC Rule 14a-2(b)(1), thus defeating the exemption from most proxy solicitation regulations.
2. Whether MONY satisfied the standards for a preliminary injunction, including likelihood of success on the merits and irreparable harm.

## Decision

- The Second Circuit affirmed the denial of a preliminary injunction.
- The court held that distributing a duplicate of management’s own proxy card, without seeking proxy authority for the soliciting party, is not furnishing a “form of revocation” under Rule 14a-2(b)(1).
- Because MONY failed to show a likelihood of success on its Rule 14a-2(b)(1) theory, injunctive relief was unwarranted.
- MONY also failed to show irreparable harm; asserted shareholder confusion or vote impact was speculative and not the type of immediate, noncompensable injury required.

## Legal Principles

- Rule 14a-2(b)(1) exempts solicitations from most proxy rules when the solicitor does not seek proxy authority and does not furnish a “form of revocation.”
- An unaltered duplicate of the issuer’s own proxy card is not a “form of revocation” merely because it could be used to change a previously cast vote; the rule targets distinct revocation instruments, not standard proxy forms recirculated by opponents.
- A preliminary injunction requires, at minimum, a showing of likelihood of success on the merits and irreparable harm; speculative confusion or contingent economic effects tied to a shareholder vote generally do not satisfy irreparable harm.

## Conclusion

The Second Circuit held that opposition shareholders may include an unaltered duplicate of the issuer’s proxy card in an otherwise exempt solicitation without furnishing a “form of revocation” under Rule 14a-2(b)(1), and it affirmed denial of preliminary injunctive relief for lack of likely success and irreparable harm.


MONY Grp., Inc. v. Highfields Cap. Mgmt., L.P., 368 F.3d 138 (2d Cir. 2004)