Proxy Access - Gone, Or Just A Phoenix?

On September 6, 2011, the Securities and Exchange Commission (SEC) issued a press release confirming that it will not seek a rehearing or Supreme Court review of the decision by the U.S. Court of Appeals for the District of Columbia Circuit relating to the proxy access rules. The decision vacated new Rule 14a-11 relating to director nominations by eligible shareholders and came in response to a petition filed a year earlier by the Business Roundtable and U.S. Chamber of Commerce.

In the press release, Chairman Mary L. Schapiro stated that she remains "committed to finding a way to make it easier for shareholders to nominate candidates to corporate boards."

The question is whether "private ordering" is the phoenix for proxy access. At the time the petition relating to Rule 14a-11 was filed, the SEC voluntarily stayed amendments to Rule 14a-8 concerning shareholder proposals relating to director elections. The SEC's stay on the amendments to Rule 14a-8 will expire