Last year when the SEC decided against adopting a rule that would have allowed shareholders access to the corporation’s proxy statement in order to nominate candidates, SEC Chairman Cox stated that the decision did not signal the end of the proxy access debate. In fact, Cox promised to revisit the issue of proxy access in 2008. Both proponents and opponents of proxy access viewed the promise with skepticism. And their skepticism stemmed from the same issue—that is, the SEC’s failure to adopt a proxy access rule, particularly in light of its decision to embrace a rule permitting corporations to exclude bylaws encompassing procedures for such proposals, seemed to be a pretty definitive statement against proxy access. Moreover, despite increased shareholder activism, it seemed that the political climate at the SEC simply was not conducive to the SEC’s adoption of a proxy access rule. Hence, I think most believed that the SEC would seek to allow the proxy access issue to quietly drift away. And yet, in a recent speech regarding the SEC’s upcoming agenda for 2008, Cox pinpointed proxy access as one of the SEC’s priorities for rulemaking. According to COX, the Division of Corporate Finance would continue its work on the proxy process and would continue to pursue the “fundamental objective of making the federally-regulated proxy system fit better with the state-authorized rights of shareholders to determine the directors of he companies they own.” To be sure, it is not clear that such a pursuit is the same as the pursuit of proxy access. Nor is it clear that such a pursuit could ever culminate in the adoption of a proxy access rule, particularly given historical and more recent defeats of such a rule. Yet Cox’s statement does suggest that the issue of proxy access in some form will continue to be a part of the governance conversation.

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