In June of 2009, the SEC published for comment the text of the proxy access rules the Commission proposed at its May 20, 2009 open meeting, “Facilitating Shareholder Director Nominations” (the Release). This proposal would require companies, in certain conditions, to include shareholder nominees for directors in their proxy materials, and is somewhat controversial, only garnering three votes in favor of proposing it out of the five member Commission. The Commission subsequently reopened the comment period.

The proposed changes to the federal proxy rules remove impediments to the exercise of shareholders' rights to nominate and elect directors to company boards of directors. The new rules would require, under certain circumstances, a company to include in the company's proxy materials a shareholder's, or group of shareholders', nominees for director. The proposal includes certain requirements, key among which are a requirement that use of the new procedures be in accordance with state law, and provisions regarding the disclosures required to be made concerning nominating shareholders or groups and their nominees. In addition, the new rules would require companies to include in their proxy materials, under certain circumstances, shareholder proposals that would amend, or that request an amendment to, a company's governing documents regarding nomination procedures or disclosures related to shareholder nominations, provided the proposal does not conflict with the Commission's disclosure rules - including the proposed new rules.