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On September 30th, the NAM filed an amicus brief urging the Middle District of Tennessee to vacate the SEC’s recission of the rule. As in our case, plaintiffs U.S. Chamber of Commerce, Business Roundtable, and Tennessee Chamber of Commerce and Industry, brought this challenge to the 2022 rescission arguing that it is both substantively arbitrary and capricious several times over and was adopted without good-faith observance of the Administrative Procedure Act’s mandated rulemaking procedures. Both cases seek to have the 2022 recission vacated ahead of the 2023 proxy season. Our amicus brief expands on the plaintiffs’ position that the concerns about proxy firms that animated the 2020 proxy firm rule have not abated, that the SEC failed to provide meaningful opportunity for comment prior to rescission of the 2020 rule, and that the SEC’s policy reversal is arbitrary and capricious.

Unfortunately, on April 24, 2023, the court denied the plaintiffs' motion for summary judgment and granted the SEC's cross-motion.

On June 27, 2023, in a parallel case to the NAM’s challenge to the SEC’s 2022 recission of the 2020 proxy firm rule, the NAM filed an amicus brief urging the 6th Circuit to reverse the district court grant of summary judgment for the SEC and vacate the SEC’s recission of the rule. As in our case, the U.S. Chamber of Commerce, Business Roundtable and Tennessee Chamber of Commerce and Industry brought this challenge to the 2022 rescission arguing that it is both substantively arbitrary and capricious and was adopted without observance of the Administrative Procedure Act’s mandated rulemaking procedures. Both cases seek to have the 2022 recission vacated. Our amicus brief expands on the appellants’ position that the concerns about proxy firms that animated the 2020 proxy firm rule have not abated, that the SEC failed to provide meaningful opportunity for comment prior to rescission of the 2020 rule, and that the SEC’s policy reversal is arbitrary and capricious.

This case was brought in the 5th Circuit by activist group NCPPR challenging an SEC no-action letter--stating that it would not recommend enforcement action against Kroger if Kroger excluded NCPPR's proposal from its proxy ballot--and accusing the SEC of applying its Rule 14a-8 in an inconsistent and politically motivated manner. Under SEC Rule 14a-8, public companies are required to include certain shareholder proposals on their proxy ballot. Activist groups from across the ideological spectrum are increasingly using shareholder proposals to inject contentious ideological policy fights into corporate governance. We intervened in this case to raise two arguments not addressed by the parties: (1) Rule 14a-8 violates the First Amendment by compelling a company to include shareholder-selected proposals unrelated to the company’s core business or the creation of shareholder value on the company’s own proxy statement at the company’s own expense; and (2) the SEC lacks authority to compel company speech on its own proxy statement.