December 14, 2021

SEC Regulatory Agenda: Commissioners Peirce & Roisman Fire a Shot Across the Bow

In advance of tomorrow’s open meeting at which the SEC is likely to propose rule amendments addressing, among other things, 10b5-1 plans and issuer buybacks, commissioners Peirce & Roisman issued a joint statement criticizing Chair Gensler’s rulemaking agenda.  In particular, the statement says that the decision to revisit rules that were only recently adopted undermines precedent:

The Agenda makes plenty of room for rulemakings to undo rulemakings that the Commission only recently completed. These include proposals to further amend our rules on proxy solicitation and shareholder proposals; the Resource Extraction Payments Rule; the rules pertaining to the accredited investor definition and the private offering exemption integration framework; as well as our whistleblower rules. Not only are the Commission’s most recent amendments to each of these rules barely or less than a year old; none have been effective for more than a few months. As we said when we initially raised these concerns, we have not seen any new information that would warrant opening up any of these rules for further changes at this time. So, why the rush to revisit them?

Hmm, I wonder if this decision to revisit prior rulemaking has anything to do with the fact that the SEC adopted each of the rules that the current regime proposes to reconsider by a 3-2 vote along partisan lines? That’s a reflection of how politicized the SEC rulemaking process has become over the course of the past couple of decades, and is something for which both sides bear responsibility.

In this environment, statements from commissioners calling into question one side’s agenda for failing to respect “precedent” that the other side crammed down their throats aren’t going to persuade anyone who doesn’t already agree with them. 

John Jenkins