Christopher Robertson Quoted in Law360
“Proxy Access Still Alive Even Without SEC Appeal”

Boston’s Christopher Robertson was quoted by Law360 on the U.S. Securities and Exchange Commission’s decision not to fight for a rule that would have required companies to allow shareholders to nominate board candidates. Still, the story notes, all is not lost for investors as opportunities still remain to challenge corporate board nominees.

The SEC announced Sept. 6 that it would not appeal a recent ruling by the D.C. Circuit that invalidated the SEC’s proxy access regulation --- 14a-11. That rule would have allowed shareholders who own 3 percent or more of a company’s voting shares over three years to nominate candidates. Most experts said the decision was not surprising given that it was likely an en banc panel would not have overturned the three-judge ruling. Although the SEC has discussed amending the rule to address the court’s concerns, most attorneys, including Chris, do not think that will happen given the SEC’s workload.

“The SEC has a looming backlog of rules required under the Dodd-Frank Wall Street Reform and Consumer Protection Act, most of which were required to be completed by July,” Chris said.

He added: “They've got a lot on their plate, though, so how soon they can revisit this is anyone's guess.”

Investors can still challenge board elections through a two-step process under another rule, 14a-8, which would require company permission for a proxy challenge. Use of that rule is expected to be limited.