The SEC won't seek en banc consideration of the DC Circuit's decision with respect to Rule14a-11 or review in the Supreme Court. It would have been a very difficult case to win in the DC Circuit since three of the nine judges could be counted on to oppose Commission efforts. Yet it leaves in place a very bad precedent that will come back to haunt the SEC with respect to future rulemaking efforts, particularly in the corporate governance area. We have a few more posts on the DC Circuit's decision and the extent to which it went beyond any other court in imposing cost-benefit burdens on the SEC.
As we have written before on this blog, this is access delayed, not access defeated.