The staff of the U.S. Securities and Exchange Commission has granted a request by Staples Inc. to exclude a binding proxy access proposal filed by Norges Bank Investment Management. 

In an April 13 ruling, the staff of SEC’s Corporation Finance Division agreed with the company’s argument that the proposed Norges bylaw proposal was “vague and indefinite” because it would have conflicted with a separate bylaw that states that the company is not obligated to include in its proxy materials any information “with respect to any nominee for director submitted by a stockholder."

“The proposal does not address the conflict between these two provisions of Staples' bylaws,” the SEC staff wrote in its no-action decision. “As such, neither shareholders nor Staples would be able to determine with any reasonable certainty exactly what actions or measures the proposal requires.”

The staff reached this conclusion even though lawyers for Norges sought to revise the resolution by adding three words to explicitly state that the shareholder proposal would supersede the existing bylaw that applied to the company's obligation to include investor nominees in its proxy materials. Staples argued that the proposed revision would not address the alleged defects in the resolution. 

The Norges proposal would have permitted investor groups that hold a 1 percent stake for at least one year to nominate board candidates, with a 25 percent limit on the total board seats that access nominees could seek each year.  

Meanwhile, another Norges proposal will be on the ballot at Wells Fargo's April 24 meeting. In support of its proposal, Norges argues that the right of shareholders to nominate directors is a fundamental principle of good corporate governance. The Norwegian institution asserts that the company's governance could be improved, and points to its combined CEO-chair and the 25 percent threshold for investors to call a special meeting. In response, Wells Fargo points out that all of its directors are elected annually under a majority vote standard and that the board has an active lead director who is available to meet with major investors. 

Similar Norges proposals are slated for votes at Charles Schwab Corp. and Pioneer Natural Resources on May 17, and at Western Union and CME Group on May 23. 

Also next week, investors at Ferro Corp.'s April 27 annual meeting will have an opportunity to vote on a different access resolution submitted by retail activist Ken Steiner. His non-binding measure, which is based on the U.S. Proxy Exchange's model proposal, calls for a 1 percent stake for two years standard, but also would allow nominations from groups of 100 of more investors who each own a $2,000 stake for at least one year. Steiner's proposal would allow each investor group to nominate at least one candidate, but doesn't impose a cap on the total number of access candidates in a given election.

In his supporting statement, Steiner criticizes the board's compensation decisions and points out that two directors received majority opposition in 2011 but still remain on the board. The Ohio-based company argues that the proposal's ownership and duration thresholds are inappropriately low and would subject the company to significant expense and diversion of time. Ferro also warns that the lack of a cap on total nominees could result in a significant number of shareholder candidates for each election and add complexity to the election process.

This is the first year since 2007 that U.S. investors will be able to vote on proxy access. The SEC lifted a ban on shareholder access proposals in August 2010, but that rule change remained on hold during the 2011 meeting season while corporate groups successfully challenged a separate SEC rule (Rule 14a-11) that would have imposed minimum access thresholds (3 percent for three years) for all firms.

In addition, public pension funds have filed non-binding access resolutions (that are based on SEC Rule 14a-11) at Chesapeake Energy and Nabors Industries, which hold their annual meetings in June.