Petitioners brief essentially asserts that access will be used by special interest shareholders. In particular, the brief seems concerned with the use of access by union pension funds. The amicus brief filed by the CII, TIAA-CREF and other funds had this to say about the argument:
- the “special-interest” shareholder petitioners purport to fear is a phantom. They offer no credible evidence to support their erroneous assertion that the actions of “state government and labor union” investors often “appear to be driven by concerns other than a desire to increase” shareholder value. Pet. 11. They offer no evidence that such “parochial” investors have burdened corporations with unreasonable demands in countries with proxy access. See pp. 15-17, supra. And the one anecdote cited by petitioners (at 12) undermines their claim. They do not assert that the Safeway “vote-no” campaign participants would have met the Rule’s 3%-ownership-for-3-years requirement. To the contrary, the participating funds there “collectively h[e]ld about 7 million of Safeway’s 445 million outstanding shares”—or only 1.6%. Walsh, State Pension Officials Accuse Safe- way Leaders of Conflict, N.Y. Times, Mar. 25, 2004, http://www.nytimes.com/2004 Petitioners’ own example thus proves the Rule’s efficacy. And if there were outlier abuses, the across-the-board benefit to shareholders of greater director responsiveness abundantly justifies any minimal outlier costs.