Manufacturers Sue SEC to Protect Private Businesses, Release Data on Harmful Impact of Novel Rule Interpretation

Washington, D.C. – The National Association of Manufacturers and the Kentucky Association of Manufacturers filed a lawsuit in federal court today challenging the Securities and Exchange Commission’s attempt to impose unwarranted public disclosure requirements on privately held businesses.

The SEC has adopted a novel reinterpretation of SEC Rule 15c2-11, imposing the rule’s public disclosure requirements on private companies that raise capital via corporate bond issuances under SEC Rule 144A—without giving manufacturers the opportunity to provide comment on the damaging impacts of such a consequential change.

According to EY economic analysis released by the NAM today, the SEC’s expansion of Rule 15c2-11 will result in decreased liquidity and increased borrowing costs in the manufacturing industry and throughout the economy—leading to job losses exceeding 100,000 annually.

“The SEC’s attempt to force private companies to disclose confidential financial information publicly is a clear violation of the Administrative Procedure Act,” said NAM Chief Legal Officer Linda Kelly. “The SEC never allowed public comment on its novel reinterpretation of Rule 15c2-11, there is no conceivable benefit to the new standard, and the SEC did not consider the impact that its about-face will have on privately held businesses—which could exceed 100,000 lost jobs each year. The NAM Legal Center is filing suit to hold the SEC accountable and protect manufacturing growth, job creation and U.S. competitiveness.”

“The SEC’s unlawful overreach threatens privately held manufacturers in Kentucky and across the country, so the Kentucky Association of Manufacturers is proud to join the NAM in this important litigation on behalf of all manufacturers in the U.S. to counter the SEC’s regulatory onslaught,” said KAM President and CEO Frank Jemley.

EY analysis highlights the damaging economic impacts of the SEC’s actions:

The economic impacts of the SEC’s expansion of Rule 15c2-11 will be felt disproportionately in the manufacturing industry, which accounts for more than half of all nonfinancial issuers of corporate bonds under Rule 144A. Across the economy, the change will result in 30,000 jobs lost each year over the first five years the new interpretation is in effect. The job losses will increase over time—rising to 50,000 jobs lost each year after five years and 100,000 jobs lost each year after 10 years.

These job losses are attributable directly to the decreased liquidity and increased borrowing costs associated with the SEC’s new interpretation.

Background:

SEC Rule 15c2-11 requires broker-dealers to ensure that key information about companies issuing over-the-counter equity securities is current and publicly available prior to quoting those issuers’ securities.
SEC Rule 144A allows for resales of securities (primarily corporate debt issuances) to qualified institutional buyers—large financial institutions that own or manage more than $100 million in securities. Retail investors cannot purchase Rule 144A securities. Notably, under Rule 144A, issuers are obligated to make their financial and operational information available to QIBs.
In September 2021, the SEC’s Division of Trading and Markets issued a no-action letter applying Rule 15c2-11 to Rule 144A debt. This decision contradicted the historical application of Rule 15c2-11 to OTC equity securities and bypassed important rulemaking safeguards required by the Administrative Procedure Act.
The NAM and the KAM filed petitions for rulemaking with the SEC in November 2022 seeking both permanent and temporary relief from the application of Rule 15c2-11 to Rule 144A securities. Following the petitions, the SEC temporarily delayed enforcement of its novel reinterpretation until January 2025, but the agency has not acted to reverse this damaging decision permanently.

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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 nearly 13 million men and women, contributes $2.90 trillion to the U.S. economy annually and accounts for 55% 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.

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Manufacturing businesses have long been proponents of equality in the workplace. As legislation to codify protections for LGBT individuals passes through the House of Representatives, the National Association of Manufacturers joined the U.S. Chamber of Commerce, Business Roundtable, and other members of the business community in advocating its passage, forging coalitions and providing congressional testimony.

Introduced with bipartisan support in the U.S. House and Senate in March, the Equality Act includes federal protections for individuals based on sexual orientation and gender identity under the existing framework of the Civil Rights Act, which already provides protection against discrimination on the basis of religion, national origin, race, color or sex. The goal of the legislation is to ensure that no person can face legal discrimination based on their gender or sexual orientation, setting a clear federal standard to enable individuals to succeed based on their abilities and qualifications to perform a job.

“Employers understand the importance of creating an environment in which the very best people can succeed based on merit,” Patrick Hedren, NAM vice president, labor, legal and regulatory policy, said. “At the same time, manufacturers know that discrimination in any form is antithetical to the values that we work to uphold every day: equality of opportunity, individual liberty, free enterprise and competitiveness.”

In March, more than 40 other industry associations rallied to support the Equality Act, providing an important boost for the groundbreaking legislation. In the weeks since, manufacturing representatives have testified before the House Education and Labor Committee and signed a coalition letter to the House Subcommittee on Civil Rights and Human Services calling for the Act’s passage. As Congress considers the way forward, manufacturers have made clear that they intend to advocate forcefully on behalf of the legislation and uphold their commitment to workers of every gender identity and sexual orientation.

“The Equality Act creates a clear federal standard that matches the sentiments manufacturers already share: gender identity and sexual orientation have no impact on an employee’s abilities and discrimination is not welcome on the manufacturing floor,” Hedren said. “We look forward to working with Congress as this important legislation moves ahead.”

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Washington, D.C. – National Association of Manufacturers (NAM) President and CEO Jay Timmons released the following statement after the Department of Labor (DOL) rescinded the 2016 Persuader Rule:

Manufacturers have fought for this victory for many years in the courts, in Congress and with two administrations, using the full weight of our policy, government relations and legal teams, said Timmons. The NAM’s Manufacturers’ Center for Legal Action was able to halt the rule in court in 2016.And in 2017, the Trump administration, as part of its broader regulatory relief agenda, thankfully began the process of unwinding the rule. This overreaching rule threatened to impose serious burdens on manufacturers and upend employee–employer communications. Now manufacturers are relieved that this threat to workplace communications is finally and officially off the books. Commonsense steps like this to rein in onerous regulations are a major reason why manufacturers are reporting record-high business optimism.

In 2016, the NAM testified on the harmful impacts of the rule before the House Small Business Committee and the Senate Committee on Small Business and Entrepreneurship.

The Manufacturers’ Center for Legal Action (MCLA) is the leading voice of manufacturers in the courts and engages in a range of activities, including direct party litigation and operating a robust amicus program, as well as educating manufacturers about emerging legal trends. The MCLA is led by NAM Senior Vice President and General Counsel Linda Kelly and NAM Vice President of Litigation and Deputy General Counsel Peter Tolsdorf. More information on the MCLA can be found here.

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The National Association of Manufacturers (NAM) 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 million men and women, contributes $2.25 trillion to the U.S. economy annually, has the largest economic impact of any major sector and accounts for more than three-quarters 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 Manufacturers or to follow us on Shopfloor, Twitter and Facebook, please visit www.nam.org.