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The 17�Թ����� achieved a significant victory in court Wednesday in a case that sought to bring needed oversight to proxy advisory firms—and, more broadly, to ensure regulatory certainty for manufacturers.

The background: Proxy firms make recommendations regarding the way shareholders should vote on proxy ballot proposals that come before public companies.

• These firms operate with minimal oversight despite their outsized influence and even though their decisions can have significant and sometimes harmful impacts.

The fight: In 2020, the Securities and Exchange Commission finalized an 17�Թ�����-backed rule that included a range of modest but critical reforms to proxy firms’ business models.

• In particular, the 2020 rule ensured that companies had more information about the firms’ voting recommendations and provided investors with companies’ responses to those recommendations.
• But in 2022, the SEC rescinded critical portions of that rule.
• The 17�Թ����� sued the SEC, asking the U.S. Court of Appeals for the Fifth Circuit to strike down this arbitrary and capricious agency action.

The victory: This week—in news covered by , (subscription), (subscription), (subscription) and (subscription)—the Fifth Circuit ruled in the 17�Թ�����’s favor, deciding that the SEC acted unlawfully in rescinding the 2020 rule. In particular, the court made two critical points:

• The court held that the SEC’s stated justification for its decisions to rescind 17�Թ�����-supported proxy firm reforms didn’t pass muster and called the agency’s reasoning “facially irrational” and not “reasonable [or] reasonably explained.”
• The court also ruled that a government agency reversing course despite no change in its underlying factual findings must “explain its about-face” by “giv[ing] a more detailed explanation” than the SEC provided.
• This ruling builds on existing case law that prevents agencies from arbitrarily reversing policies after administrations change, thus encouraging regulatory certainty for manufacturers.

Our take: “This decision confirms that federal agencies are bound by the rule of law, even as administrations change,” 17�Թ����� Chief Legal Officer Linda Kelly.

• “Manufacturers depend on the SEC to be a steady regulatory hand at the wheel of America’s world-leading capital markets—an obligation the agency abandoned in rescinding the commonsense, compromise 2020 proxy advisory firm rule. … We will continue to fight in court to uphold the 2020 rule—and to work with the SEC and with Congress to ensure appropriate oversight of these powerful actors.”