BIO Files Amicus Brief Supporting Reversal of Court Decision Regarding SEC Regulations on Proxy Advisory Firms

BIO filed an amicus brief in the U.S. Court of Appeals for the Sixth Circuit, seeking the reversal of a lower court's ruling that would set aside the 2022 rescission of the Securities and Exchange Commission (SEC) 2020 Rule regulating proxy advisory firms.

Proxy advisory firms are firms that provide consulting services to shareholders, commonly via recommendations, on how to vote on proxy ballot issues. The brief explains the profound influence these firms have come to amass over investors and their shareholder votes, and as a result, their influence on the corporate governance of public companies. Furthermore, when the firms' recommendations miss the mark, the negative impact can be particularly troublesome for specialized industries with small companies—such as the myriad small and emerging companies that make up BIO's membership.

This is where the SEC's 2020 Rule comes into focus. The key provisions of the SEC's 2020 Rule regulating proxy advisory firms were established to ensure greater transparency, accuracy, and completeness of the firms' recommendations. The "notice and awareness" provision required that firms provide companies and investors with the same proxy ballot reports concurrently. Additionally, firms were required to notify their clients of any company responses to the recommendations as well as disclose any potential conflicts of interest in their recommendations.

Despite the problems and insufficiencies identified in proxy advisory firms and their recommendations, in 2022, the SEC rescinded the provisions. While the disclosure provision remains intact, the brief contends that it is made less effective without the notice and awareness provisions. Moreover, shareholders and companies subject to these recommendations return to the less-than-ideal status quo—one-size-fits-all recommendations that, when inaccurate, can be time-consuming and financially burdensome to correct.

Finally, the brief argues that the 2022 rescission was abrupt, unsupported, and contrary to the years of research and fact-finding that led up to the establishment of the 2020 Rule. Consequently, the lower court's ruling to approve the rescission should be reversed.