Nasdaq Board Diversity Rules Officially Gone

As Cooley’s Cydney Posner notes in this blog, the SEC recently issued this order to approve a Nasdaq proposal “operative upon filing” rather than wait the traditional 30 days. The Nasdaq proposal removes the relevant board diversity provisions from its rules to reflect “a Federal court’s vacatur of the Commission’s order of August 6, 2021, approving rules related to Board diversity disclosures.” As we wrote about back in December, the Fifth Circuit ruled that the SEC exceeded its authority when it approved the Nasdaq board diversity rule in Alliance for Fair Board Recruitment v. SEC.

At the time, it was reported that Nasdaq didn’t intend to appeal the Fifth Circuit court’s ruling – but it was unclear if the SEC would act otherwise. Now, we know that Nasdaq’s board diversity rules are gone.

Cydney’s recent blog contains analysis about how some of the arguments in the Fifth Circuit’s case might be used in future lawsuits, so check that out. And don’t forget Beth Sasfai’s musings in this blog, “Nasdaq’s Board Diversity Rule Is Dead: Now What?

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Portrait photo of Broc Romanek over dark background

Broc Romanek