The Harvard Law School Forum on Corporate Governance https://corpgov.law.harvard.edu The leading online blog in the fields of corporate governance and financial regulation. Sun, 24 May 2026 11:30:22 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.8 https://corpgov.law.harvard.edu/wp-content/uploads/2024/02/cropped-photography-4-e1706898544564-1-32x32.png Shareholder Choice in a World of Proxy Access – The Harvard Law School Forum on Corporate Governance https://corpgov.law.harvard.edu 32 32 Shareholder Choice in a World of Proxy Access https://corpgov.law.harvard.edu/2009/12/31/shareholder-choice-in-a-world-of-proxy-access/?utm_source=rss&utm_medium=rss&utm_campaign=shareholder-choice-in-a-world-of-proxy-access https://corpgov.law.harvard.edu/2009/12/31/shareholder-choice-in-a-world-of-proxy-access/#comments Thu, 31 Dec 2009 15:52:04 +0000 http://blogs.law.harvard.edu/corpgov/?p=6377?d=20091231105204EST
Editor’s Note: Stanley Keller is partner of Edwards Angell Palmer Dodge LLP. This post is by Mr. Keller, Robert Todd Lang and Charles M. Nathan. Mr. Lang is a partner of Weil, Gotshal & Manges LLP; and Mr. Nathan is a partner of Latham & Watkins LLP. The views expressed in this paper are solely those of the authors and not those of other members of their respective firms, any of their firms’ clients or any organizations with which they are associated.

Although there can be legitimate debate over whether there should be a federally-mandated proxy access rule, if we assume that the Securities and Exchange Commission does adopt a final proxy access rule in 2010, two critical issues are whether the rule will allow for shareholder choice and, if so, what paradigm will be used. This paper first addresses the cases for and against shareholder choice and concludes that shareholder choice should be permitted on proxy access. It then explores the two principal paradigms the Commission’s final proxy access rules could utilize to provide shareholder choice and makes recommendations on key implementation issues under each paradigm.

The debate at the Commission’s open meeting in May 2009, preceding its divided vote to propose proxy access rules, centered on issues of shareholder choice and private ordering. As proposed, the proxy access rules would give shareholders only a right to liberalize proxy access, but no right to make the terms of proxy access more restrictive or to opt-out completely. Many commentators have criticized the asymmetrical, “one way street” aspect of this version of shareholder choice and argued for a broader version that would allow greater freedom to shareholders to vary the SEC prescribed access regime in either direction.

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