The Future of the Proxy Access Rule

On July 22, 2011, the U.S. Court of Appeals for the District of Columbia Circuit vacated the SEC’s controversial proxy access rule, Rule 14a-11, which would have allowed shareholders to have their director nominees included in a company’s proxy materials so long as the shareholders and their nominees satisfied certain conditions. The Court found that the SEC was arbitrary and capricious in promulgating Rule 14a-11 by failing to adequately consider the economic consequences of the rule and its effect on efficiency, competition and capital formation. 

The SEC has stated that it is considering its options, but it has not indicated whether it will appeal the decision or try to address the concerns raised by the Court and modify the rule. In any event, it seems fairly certain that proxy access will not apply to the 2012 proxy season. 

This panel will examine the various options open to the SEC as well as their potential impact. The Court's reasoning in arriving at its judgment and the future of the case will also be considered.

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