In Augustthe SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure, accompanied by a proposal to provide free access to a board recruiting service. See this PubCo post. See this PubCo post and this PubCo post. Supreme Court challenge against race-conscious college admissions policies. Given that, by repute, the Fifth Circuit is the circuit of choice for advocates of conservative causes, the decision to deny the petition may have taken some by surprise—unless, that is, they were aware, as discussed in the WSJ and Reutersthat the three judges on that panel happened to all be appointed by Democrats. Petitioners then filed a petition requesting a rehearing en banc by the Fifth Circuit, where Republican presidents have appointed 12 of the 16 active judges. Not that politics has anything to do with it, of course. That petition for rehearing en banc was grantedvacating the opinion of the lower court. In May, the en banc court heard oral argument, with a discussion dominated by rule skeptics. No surprise there—the surprise was that the vote by the Fifth Circuit was nine to eight. In effect, the dissent contended, the majority was advocating that the agency intrude more on this exercise in private ordering. The Act exists primarily to protect investors and the macroeconomy from speculative, manipulative, and fraudulent practices, and to promote competition in the market for securities transactions. A disclosure rule is related to the purposes of the Act if it has some connection with those purposes, but not otherwise. All it said was that the Proposal is designed to advance three of the purposes contained in § 78f b 5. But those purposes bear no relationship to the disclosure of information about the racial, gender, and sexual characteristics of the directors of public companies. Nasdaq listing rule. Companies with five or fewer directors could satisfy the recommended objective with one director from a diverse background rather than two. Separately, Nasdaq also provided Nasdaq-listed companies with one-year of complimentary access to a board recruiting solution to help identify board-ready diverse candidates. The statute does not give the Commission the ability to make any changes to the rule proposal as submitted, or to disapprove the rule proposal on the ground that the Commission would prefer some alternative rule on the same topic. Three-judge panel opinion. Petitioners first made several Constitutional claims. The panel, however, concluded that Nasdaq was not a state actor. Citing West Virginia v. For a more detailed discussion of the now-vacated opinion of the three-judge panel, see this PubCo post. Petition for rehearing. No court has ever adopted such an expansive definition of materiality, which will empower the SEC to act as a junior-varsity Congress unconstrained even by the Constitution. Oral Argument. Rather, the discussion initiated by the Court was largely focused on two issues: was the information required by the rule within the parameters of the Exchange Act provisions describing the purposes for which the SEC and Nasdaq may impose rules? And, in that light, were there any limits on what information the SEC could require companies to disclose? Petitioners maintained that the purpose of the rule was not within the purposes cognizable under the Act—specifically Section 6 b 56 b 8 and 19 b —which generally include preventing fraudulent and manipulative acts and practices, promoting just and equitable principles of trade, removing impediments to and perfecting the mechanism of a free and open market and a national market system, and, in general, protecting investors and the public interest. Nor, petitioners maintained, does the rule promote efficiency, competition, capital formation or investor protection. The SEC may not approve rules that are out of bounds. Is it clear that board diversity is beneficial, they asked? Petitioners contended that, unless the rules related to improving corporate performance and shareholder value, there was no basis for their approval. Investor requests for information, especially socially controversial information, outside the purposes of the Exchange Act do not justify the rules, they argued. But, the judge inquired, should the SEC have to interrogate investors like Goldman Sachs about their motivations? Later, petitioners said that the Court should look through the claims of investor interest to the real intent of the rules—to create a pressure campaign to allocate board seats based on race and sex. When asked how far the SEC Avorion Escort Cant Jump The Gate to inquire into the motives of investors, counsel for petitioners argued Avorion Escort Cant Jump The Gate there was no need to look under the hood of the car—this rule was itself a hood ornament. The rule, they said, opens the door to disclosure of religion and political affiliation. Those demanding the information, they contended, are not really representative of the whole investor class, but rather of asset managers and proxy advisors and others with special interests who are not acting to maximize shareholder value, but rather to advance collateral social interests. In the hands of proxy advisors, they said, the information could even be harmful. They contrasted the SEC disclosure rule, which simply required information about how the nominating committee considers diversity in its director nominations, but did not define diversity. But that issue quickly devolved into some amazing hypotheticals from the various judges as to what the rules could require if investors said they wanted to know: Could the rules require disclosure regarding the college degrees of board members? Whether they are on TikTok? Are they Swifties?
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