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SEC Rule 14a-11
On Sept. 6, 2011, the Securities and Exchange Commission (SEC) gave up the ghost on Rule 14a-11, the Commission rule that required companies to include shareholders' director nominees in company proxy materials in certain circumstances. The Commission eschewed rehearing or a petition for certiorari after the Federal Circuit negated the Rule in Business Roundtable and Chamber of Commerce v. Securities and Exchange Commission, ___ F.3d ___, No. 10-1305 (D.C. Cir. 7/22/11).
The core of the Business Roundtable court holding was that the Commission had failed to articulate a satisfactory explanation for its action including a rational connection between the facts found and the choices made regarding efficiency, competition, and capital formation, as required by section 3(f) of the Exchange Act and section 2(c) of the Investment Company Act of 1940. The Commission's decision not to seek review was somewhat surprising in that the Business Roundtable court had directly and pointedly stated that the Rule was arbitrary, capricious, and an abuse of discretion under the Administrative Procedure Act.
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