WASHINGTON, D.C.— Stephen Hall, Legal Director and Securities Specialist, issued the following statement on yesterday’s filing of an amicus brief supporting the approval by the Securities and Exchange Commission (SEC) of Nasdaq’s board diversity disclosure rule:
“We’re defending an important disclosure rule issued by Nasdaq, a major stock exchange, which the SEC rightly approved. It requires companies listed on the exchange to disclose key information about the diversity of their boards of directors. The SEC’s approval is under legal assault in the Fifth Circuit, and the stakes are high. If the court nullifies the rule, investors will be deprived of information they increasingly want and need to decide where to invest their money. And in the long run, an adverse ruling will threaten the SEC’s ability to require other types of disclosures for the benefit of investors. Moreover, it will impede progress toward achieving greater diversity in America’s board rooms.
“Nasdaq’s rule basically just requires companies to be transparent about the diversity of their boards. It requires each company listed on the exchange to publicly disclose the self-identified gender, racial, and LGBTQ+ status of each member of the company’s board. The rule also requires each listed company to have, or disclose why it does not have, at least one director who self-identifies as female and at least one director who self-identifies as an underrepresented minority or LGBTQ+. A three-judge panel of the Fifth Circuit initially upheld the SEC’s approval of the rule. But the challengers relentlessly pressed their attack, persuading the court to rehear the case ‘en banc’ or by all active judges on the Fifth Circuit.
“Our brief shows that the SEC had ample authority to approve such disclosures. We also show that the rule isn’t even subject to the challengers’ First Amendment claims and in any event survives the appropriate level of constitutional scrutiny. And we demonstrate that, contrary to the challengers’ arguments, the SEC had no obligation to conduct a cost-benefit analysis of the rule but in any event properly found that the rule provided major benefits to investors who want and need access to board diversity information.”
The amicus brief can be found here. A fact sheet summarizing the brief can be found here.
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