Law Firms Comment on SEC’s Proposed Proxy Access Rules

(Editor’s Note: This post is by Theodore Mirvis of Wachtell, Lipton, Rosen & Katz. In addition to participating in the comment letter discussed in this post, Wachtell, Lipton, Rosen & Katz also filed its own comment letter, which is available here.)

Seven major law firms — Cravath, Swaine & Moore LLP, Davis Polk & Wardwell LLP, Latham & Watkins, LLP, Simpson Thacher & Bartlett LLP, Skadden, Arps, Slate, Meagher & Flom LLP, Sullivan & Cromwell LLP and Wachtell, Lipton, Rosen & Katz — collaborated on a 40-page comment letter that was submitted to the SEC today on its proposed proxy access rules. The joint 7 Firm letter recommends:

• The SEC should amend Rule 14a-8(i)(8) to permit stockholders to utilize Rule 14a-8 for proxy access proposals.
• The SEC should not adopt Rule 14a-11 until there has been sufficient experience with private ordering of proxy access under amended Rule 14a-8 to permit the SEC to make a more informed decision as to whether a prescriptive rule governing proxy access is necessary and desirable.
• If the SEC disagrees with the firms’ view, the SEC should not adopt a prescriptive proxy access rule any earlier than the 2011 proxy season.
• Finally, any prescriptive proxy access regime should permit private ordering under state law so as to permit stockholders to modify the SEC’s proxy access regime as they see fit, including by opting out entirely.

The letter includes detailed discussion and recommendations regarding the workability issues raised by the SEC’s proposed proxy access rules.

The complete comment letter can be downloaded here.