Regulatory and Legal Reform

The NAM notched a significant legal victory yesterday when a federal judge vacated the Securities and Exchange Commission’s suspension of a 2020 rule regulating “proxy advisory firms.”

The background: Proxy firms advise institutional investors on how to vote their shares in publicly traded companies, but those firms have long been unregulated and unaccountable.

• In 2020, in large part through the advocacy of the NAM, the SEC finalized a rule increasing oversight of these firms—but in 2021, the SEC’s new leadership announced that the agency would not enforce the rule.
• Suspending the rule without public notice and comment was a violation of administrative law—and the NAM stepped up to challenge this circumvention of the Administrative Procedure Act in court.

The win: Yesterday, the NAM won its case against the SEC in the U.S. District Court for the Western District of Texas. The decision makes clear that the SEC acted unlawfully by suspending the compliance date for the proxy firm rule without following the notice-and-comment procedures required under the APA.

• As the court said in its opinion, “[agencies] do not have the inherent power to stay or delay a final rule absent notice-and-comment rulemaking.”

What’s next: The NAM has also filed suit against the SEC’s 2022 rescission of critical components of the 2020 rule. That case is still ongoing, with oral arguments scheduled for December—but this week’s decision ensures that the SEC will not be able to re-suspend the 2020 rule if the NAM is successful in its challenge to the rescission.

Our take: “Today’s decision is a victory for the rule of law, and the NAM Legal Center was proud to lead this effort for the industry,” said NAM Chief Legal Officer Linda Kelly. “Federal agencies are bound by the Administrative Procedure Act—standards the SEC failed to meet by indefinitely delaying the compliance date for the 2020 proxy firm rule without notice-and-comment rulemaking. Manufacturers depend on regulators to promulgate and enforce reliable rules of the road, and the NAM looks forward to similarly holding the SEC to account in our ongoing case against the agency’s unlawful rescission of the 2020 rule.”

Washington, D.C. – Following a decision granting the National Association of Manufacturers’ motion for summary judgment in NAM v. SEC and vacating the Securities and Exchange Commission’s unlawful suspension of its duly promulgated proxy advisory firm rule, NAM Chief Legal Officer Linda Kelly released the following statement:

“Today’s decision is a victory for the rule of law, and the NAM Legal Center was proud to lead this effort for the industry. Federal agencies are bound by the Administrative Procedure Act—standards the SEC failed to meet by indefinitely delaying the compliance date for the 2020 proxy firm rule without notice-and-comment rulemaking. Manufacturers depend on regulators to promulgate and enforce reliable rules of the road, and the NAM looks forward to similarly holding the SEC to account in our ongoing case against the agency’s unlawful rescission of the 2020 rule.”

Background:

The NAM has long called for increased oversight of proxy advisory firms. In July 2020, the SEC issued final regulations to enhance transparency and accountability for proxy firms, a move NAM President and CEO Jay Timmons called a “long-sought, major win for the industry and millions of manufacturing workers.” In October 2020, the NAM filed a motion to intervene in ISS v. SEC (ISS’s attempt to overturn the rule) in support of these reforms.

In June 2021, the SEC announced that it was suspending enforcement of the 2020 rule; the NAM filed suit against the SEC in October 2021 challenging this unlawful suspension. The U.S. District Court for the Western District of Texas today issued an opinion granting the NAM’s motion for summary judgment and vacating the SEC’s suspension of the rule. As the court explained, “[Agencies] do not have the inherent power to stay or delay a final rule absent notice-and-comment rulemaking.”

In July 2022, the SEC rescinded critical portions of the 2020 rule, a move that Timmons said “epitomizes ‘arbitrary and capricious’ rulemaking.” The NAM has filed suit challenging the rescission; a summary judgement hearing in NAM v. SEC is scheduled for December 9, 2022.

-NAM- 

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.8 million men and women, contributes $2.77 trillion to the U.S. economy annually and accounts for 58% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

The Senate voted yesterday to ratify the Kigali Amendment—an international greenhouse gas–reduction accord that is more meaningful than any the U.S. had agreed to before. Long advocated by the NAM, this ratification is a major step forward for manufacturers and their ability to compete effectively and sustainably.

A climate-action model: In a strong bipartisan 69–27 vote, the Senate approved the amendment, a change to the 1987 Montreal Protocol that phases down the use of hydrofluorocarbons (commonly used refrigerants) in favor of more efficient next-generation alternatives.

• The measure, which the NAM called for in its climate change roadmap, “The Promise Ahead,” “could help avoid a half-degree Celsius of global temperature increases by the end of this century,” according to POLITICO Pro’s E&E News (subscription).
• The ratification builds on a move for which manufacturers also pushed, the 2020 legislation requiring the Environmental Protection Agency to issue rules to phase down nonessential HFCs by 85% by 2036.

Manufacturers approve: Many manufacturers were delighted by this move. “Trane Technologies applauds senators on both sides of the aisle for voting to ratify the Kigali Amendment,” Trane Technologies Chair and CEO Dave Regnery told Input.

• “In addition to creating 33,000 U.S. jobs, stimulating $12.5 billion in new investment in the U.S. economy and boosting U.S. exports by 25%, ratifying Kigali aligns with our bold commitments to reduce emissions through sustainable innovation.”

Accountability for China, India: Critically, the legislation fortifies “our global leadership and put[s] the U.S. in a position to hold countries like China and India accountable,” NAM Vice President of Energy and Resources Policy Rachel Jones said in a communique to Congress—which was quoted by Environment & Public Works Committee Chairman Sen. Tom Carper (D-DE) on the Senate floor Tuesday.

• The amendment will also “protect American workers, grow the economy and improve our trade balance all while encouraging further innovation to strengthen America’s technology leadership,” Jones wrote.

Inside the NAM’s advocacy: “We were able to leverage our longstanding policy experience, strategic partnerships and our depth of relationships in the Senate to adeptly navigate the ever-changing and challenging politics,” said NAM Senior Vice President of Policy & Government Relations Aric Newhouse.

• “Ultimately, the NAM’s support and long-term engagement was able to shepherd this crucial priority for manufacturers across the finish line in a bipartisan way that doesn’t force a false choice between environmental protection and economic growth.”

The last word: “This action proves that if we work together—if we rise above politics and partisanship and focus on solving problems—we can make our vision of a brighter tomorrow into reality,” Jones said in a statement.

While smart regulations can enhance manufacturers’ competitiveness, there are far too many cases of unwieldy or unnecessary rules getting in their way. That’s why the NAM is standing up for regulatory reform and providing policymakers with a list of solutions to pursue today.

The challenge: The annual regulatory cost burden for an average U.S. firm represents 21% of its payroll, forcing manufacturers to divert resources away from important investments. For smaller manufacturers, the burden can be disproportionately painful, creating barriers to growth and development.

Our work: At the NAM, we’re advocating for a predictable regulatory agenda that is based on science and facts and that offers flexibility for innovation.

• The NAM’s agenda, contained in its policy blueprint Competing to Win, seeks to combat the fundamental problems in our outdated regulatory system.
• That includes ensuring that regulations focus on outcomes and rely on data; improving regulatory analysis; minimizing unnecessary burdens; strengthening industry outreach; preserving the ability of companies to grow; and reducing the abuse of our legal system.

What we’re saying: “Manufacturers in the United States should be able to grow, compete and win without being stymied by outdated and unnecessary regulations,” said NAM Director of Regulatory, Tax and Domestic Economic Policy Alex Monié.

• “We are proud of the work that the NAM has done to reduce the burden on businesses while also protecting the men and women who make things in America.”
• “We are committed to pressing forward so that every manufacturer can support their workforce, participate in market innovation, contribute to their communities, promote competitiveness and advance U.S. leadership.”

Learn more: Check out the NAM’s full regulatory reform agenda in Competing to Win—a strategic blueprint for the policies that manufacturers in America need to compete with the rest of the world.

Washington, D.C. – Ahead of the midterm elections, the National Association of Manufacturers released its policy roadmap, “Competing to Win,” a comprehensive blueprint featuring immediate solutions for bolstering manufacturers’ competitiveness. It is also a roadmap for policymakers on the laws and regulations needed to strengthen the manufacturing industry in the months and years ahead.

With the country facing rising prices, snarled supply chains and geopolitical turmoil, manufacturers are outlining an actionable competitiveness agenda that Americans across the political spectrum can support. “Competing to Win” includes the policies manufacturers in America will need in place to continue driving the country forward.

“‘Competing to Win’ offers a path for bringing our country together around policies, shared values and a unified purpose,” said NAM President and CEO Jay Timmons. “The NAM is putting forward a plan filled with ideas that policymakers could pursue immediately, including solutions to urgent problems, such as energy security, immigration reform, supply chain disruptions, the ongoing workforce shortage and more. Manufacturers have shown incredible resilience through difficult times, employing more workers now than before the pandemic, but continued resilience is not guaranteed without the policies that are critical to the state of manufacturing in America.”

The NAM and its members will leverage “Competing to Win” to shape policy debates ahead of the midterm elections, in the remainder of the 117th Congress and at the start of the 118th Congress—including in direct engagement with lawmakers, for grassroots activity, across traditional and digital media and through events in key states and districts as we did following the initial rollout of the roadmap in 2016.

The document focuses on 12 areas of action, and all policies are rooted in the values that have made America exceptional and keep manufacturing strong: free enterprise, competitiveness, individual liberty and equal opportunity.

Learn more about how manufacturers are leading and about the industry’s competitiveness agenda at nam.org/competing-to-win.

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.8 million men and women, contributes $2.77 trillion to the U.S. economy annually and accounts for 58% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org

Washington, D.C. – The National Association of Manufacturers filed a lawsuit in federal court today challenging the Securities and Exchange Commission’s rescission of critical components of its 2020 rule on proxy advisory firms. Following the submission, NAM Chief Legal Officer Linda Kelly released the following statement:

“The SEC has failed to provide any substantive justification for its dramatic about-face. Manufacturers depend on federal agencies to provide reliable rules of the road, and the SEC’s arbitrary actions to rescind this commonsense regulation clearly violate its obligations under the Administrative Procedure Act. The NAM Legal Center is filing suit to preserve the 2020 rule in full and protect manufacturers from proxy advisory firms’ outsized influence.”

Background:

The NAM has long called for increased oversight of proxy advisory firms. In July 2020, the SEC issued final regulations to enhance transparency and accountability for proxy firms, a move NAM President and CEO Jay Timmons called a “long-sought, major win for the industry and millions of manufacturing workers.” In October 2020, the NAM filed a motion to intervene in ISS v. SEC (ISS’s attempt to overturn the rule) in support of these reforms. A summary judgment hearing in ISS v. SEC is scheduled for July 29, 2022.

In June 2021, the SEC announced that it was suspending enforcement of the 2020 rule; the NAM voiced concern about the agency’s “efforts to bypass the required notice-and-comment process to keep this lawfully issued rule on ice indefinitely.” The NAM later filed suit against the SEC in October 2021 challenging this unlawful suspension. The Western District of Texas held a summary judgment hearing in NAM v. SEC on May 25, 2022; we await the court’s opinion.

In November 2021, the SEC proposed to rescind critical portions of the 2020 rule, a proposal the NAM called “deeply troubling.” The SEC finalized its rescission rule in July 2022, a move that Timmons said “epitomizes ‘arbitrary and capricious’ rulemaking.”

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.8 million men and women, contributes $2.77 trillion to the U.S. economy annually and accounts for 58% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

The U.S. Securities and Exchange Commission has proposed a new rule that could undermine key reforms the NAM secured in 2020—and empower activist shareholders.

The background: Shareholders in public companies generally have the right to submit proposals to corporate proxy ballots.

• These proposals, which voice shareholders’ views on business and governance topics relevant to the company, can then receive a vote by the full shareholder base.
• To qualify for inclusion on the ballot, shareholder proposals must meet certain criteria.

Submission thresholds: In 2020, the NAM supported—and the SEC finalized—new thresholds to make it more difficult for activist shareholders to place politically motivated proposals on the proxy ballot.

• These thresholds require higher degrees of ownership and shareholder support before a proposal can be submitted or resubmitted.

The new rule: The SEC’s proposal leaves the 2020 thresholds in place, but it creates other opportunities for activists and limits the tools companies can use to prevent them from hijacking the proxy ballot.

• Currently, companies can exclude shareholder proposals that have already been substantially implemented, are duplicative of other proposals on the proxy ballot or are resubmissions of previous failed proposals. Each of these abilities would be limited significantly under the proposed rule.
• For example, rather than being allowed to exclude all duplicative proposals, companies would only be permitted to exclude virtually identical proposals that address the same subject matter, seek the same objective and do so by the same means.

What we’re saying: “The NAM is concerned that the SEC’s proposed rule may prioritize the agendas of activists over the needs of long-term shareholders investing for the future,” said NAM Senior Director of Tax and Domestic Economic Policy Charles Crain.

• “We look forward to working with the SEC in the coming months to ensure that manufacturers’ shareholder engagement can continue to focus on issues critical to business growth and investor returns.”

Next steps: Comments on the proposed rule are due to the SEC by Sept. 12.

As the U.S. Securities and Exchange Commission turns its back on a bipartisan agreement on proxy advisory firms, the NAM is taking action.

The background: In 2020, the NAM supported—and the SEC finalized—a major rule to increase oversight and transparency with regard to proxy advisory firms. These unregulated and unaccountable entities influence publicly traded companies by recommending how institutional asset managers should vote in corporate proxy contests.

• Since last January, the SEC’s new leadership has taken steps to undermine and reverse the 2020 rule. The NAM has filed suit against the SEC for refusing to enforce the 2020 rule, called on the agency to provide “reliable rules of the road” and opposed a proposed rule to reduce proxy firm oversight.

The new rule: Yesterday, the SEC released a final rule that rescinds many of the critical reforms the NAM secured in 2020. Specifically, the new rule removes requirements for proxy firms to engage with impacted companies and their shareholders, and it weakens the 2020 rule’s anti-fraud provisions.

Arbitrary and capricious: The SEC is making these substantial changes absent any new evidence—because the 2020 rule was never allowed to take effect. It has also failed to articulate a satisfactory policy justification. Federal agencies are prohibited from issuing regulations that are “arbitrary and capricious”—an easy descriptor for the SEC’s actions given the agency’s abrupt and unjustified about-face.

NAM in action: The NAM announced yesterday that it plans to file suit against the SEC to preserve the 2020 rule. It will argue that the SEC’s decision to change course without allowing the 2020 rule to take effect and be fairly evaluated epitomizes arbitrary and capricious rulemaking.

What we’re saying: “The SEC has offered no justification for abandoning a decade’s worth of bipartisan, consensus-driven policymaking,” said NAM President and CEO Jay Timmons. “This move will undoubtedly harm the competitiveness of publicly traded manufacturers, and it will hurt Main Street investors.”

Washington, D.C. – Following the Securities and Exchange Commission’s announcement that it is rescinding critical reforms designed to protect publicly traded manufacturers and their investors from unregulated and unaccountable “proxy advisory firms,” National Association of Manufacturers President and CEO Jay Timmons released the following statement:

“The SEC has offered no justification for abandoning a decade’s worth of bipartisan, consensus-driven policymaking. This move will undoubtedly harm the competitiveness of publicly traded manufacturers, and it will hurt Main Street investors. The SEC’s decision to change course without allowing the 2020 rule to take effect and be fairly evaluated epitomizes ‘arbitrary and capricious’ rulemaking. The NAM will be filing suit in the coming weeks to preserve the 2020 rule’s commonsense reforms and protect manufacturers from proxy advisory firms’ outsized influence.”

Background:

The NAM has long called for increased oversight of proxy advisory firms. In July 2020, the SEC issued final regulations to enhance transparency and accountability for proxy firms, a move Timmons called a “long-sought, major win for the industry and millions of manufacturing workers.” In October 2020, the NAM filed a motion to intervene in ISS v. SEC (ISS’s attempt to overturn the rule) in support of these reforms.

In June 2021, the SEC announced that it was suspending enforcement of the 2020 rule; the NAM voiced concern about the agency’s “efforts to bypass the required notice-and-comment process to keep this lawfully issued rule on ice indefinitely.” The NAM filed suit against the SEC in October 2021 challenging this unlawful suspension. Oral arguments in NAM v. SEC took place in May 2022.

In November 2021, the SEC proposed to rescind critical portions of the 2020 rule, a move the NAM called “deeply troubling.” The NAM filed comment opposing the recission proposal in December 2021.

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.7 million men and women, contributes $2.71 trillion to the U.S. economy annually and accounts for 58% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

Washington, D.C. – Following the Supreme Court’s 6–3 decision in West Virginia vs. EPA, National Association of Manufacturers President and CEO Jay Timmons released the following statement:

“Manufacturers share a deep commitment to protecting our planet and our people, and manufacturing innovation holds the key to solving the generational challenge of climate change. The court’s decision affirms the Environmental Protection Agency’s authority to issue appropriate greenhouse gas regulations while providing a reminder that the agency must stay within the guardrails delegated by Congress. As some of the largest electricity consumers and as electricity generators, manufacturers are ready to work with the EPA to deliver innovative and balanced solutions that protect our environment and our competitiveness as it considers next steps.”

Background: Earlier this week, the NAM along with 42 state partners sent President Biden a letter highlighting the importance of affordable, reliable electricity for manufacturers to remain competitive. It signals manufacturers’ eagerness to work with policymakers on the important decisions and planning surrounding the future of the electrical grid and broader energy policy.

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.7 million men and women, contributes $2.71 trillion to the U.S. economy annually and accounts for 58% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org