Subject: File No. S7-10-09
From: William H. Clark, Jr.
Affiliation: Drinker Biddle Reath LLP

December 31, 2009

I am providing this comment in my capacity as President of the North Dakota Corporate Governance Council. As the Commission considers whether the rule it plans to adopt on proxy access should be mandatory for all issuers, I urge the Commission to be sensitive to issues of federalism. The North Dakota Publicly Traded Corporations Act already mandates that every corporation subject to the act must provide a right of proxy access for shareholders. See N.D. Cent. Code 10-35-08. Unlike the provision of Delaware law that permits corporations to adopt bylaws on proxy access, the North Dakota statute is mandatory and cannot be varied by the corporation. Whatever the Commission decides to do with respect to the issue of whether the right of proxy access the Commission mandates will preempt what a corporation may have done by way of creating a right of proxy access by private ordering, as a matter of federalism and respect for state law the Commission should not preempt any rights of proxy access that are mandated by state law. Where a state has already decided as a matter of public policy that shareholders in corporations incorporated under its laws should have a right of proxy access, that right should be respected and not be preempted by the Commission.