In Augustthe SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure, accompanied by a proposal to provide free Twitter Old Women Sex 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 Twitter Old Women Sex 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 Twitter Old Women Sex. 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.
Sign Up for Free and enhance your experience. Dissenting opinion The eight dissenting judges had quite a different take on the board diversity rule— concluding that the roles of the SEC and the courts in this context should be markedly less intrusive into the decisions of Nasdaq, a private entity. Hausa dili. The Cream Machine Strikes Back!? A disclosure rule is related to the purposes of the Act if it has some connection with those purposes, but not otherwise. Disclosure Requirements.
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