The legal landscape surrounding LGBTQ+ board diversity initiatives

Authors:

États-Unis | Publication | septembre 2024

The Nasdaq Rule: Effective but endangered (or just “in danger”)

In last year’s LGBTQ+ Board Monitor Report of the Association of LGBTQ+ Corporate Directors, the Association introduced Nasdaq Rules 5605(f) and 5606 (together, the “Nasdaq Rule” or the "Rule"), which requires Nasdaq-listed companies (with some exceptions) to eventually have, or explain why they do not have, at least two diverse board members, including at least one who self-identifies as female. The Rule also requires listed companies to disclose a “Board Diversity Matrix” annually, either in their proxy statementor on their website, and provides a “phase in” period for the diversity targets.

The Nasdaq Rule was considered a game-changer, as it explicitly allowed for LGBTQ+ status to satisfy the Rule’s second-seat diversity target in addition to race and gender diversity. And the Nasdaq Rule continues its steady march towards more disclosure and visibility for LGBTQ+ board members, based on data compiled by KPMG.¹ At the time last year’s Monitor was published, which relied on 2022 proxy data, roughly 15 percent of S&P 500 companies included LGBTQ+ disclosure in their proxy statement—up from six percent the year before. Now, after another year of the Nasdaq Rule in effect, 29 percent of the S&P 500 (and 40 percent of the Russell 3000) disclosed whether any of their directors self-identified as LGBTQ+ in some form. Nine percent of S&P 500 companies, however, included self-identification of LGBTQ+ status for individual directors in their board diversity matrix, which is more specific than required. That number, though, does include companies that had zero directors self-identify as LGBTQ+, but included the demographic on their matrix all the same.

Although improving, the consideration of LGBTQ+ status in board searches lags behind other underrepresented groups. While 93 percent of firms in the S&P 500 disclose that they consider racial, ethnic, or gender diversity as a factor when searching for board members, only 17 percent similarly report considering LGBTQ+ status as a search criterion.

Just a phase

Though already effective, the Rule’s potential impact is unlikely to be fully realized for at least a couple more years. One reason is the lengthy and varied “phase in” periods mentioned earlier. As a result, the end of 2023 marked the first “critical” date for the Rule’s implementation since it was approved by the SEC in 2021, with companies already listed on Nasdaq’s Global and Global Select Markets needing to either have one diverse board member or offer an alternative explanation for the first time. Over the next two to three years, the full rule will become effective in stages, depending on the Nasdaq market tier on which the company is listed. As readers of the Monitor are likely aware, Nasdaq has three market tiers, The Nasdaq Global Select Market, The Nasdaq Global Market, and The Nasdaq Capital Market, with different timelines to conform to the Rule.

All listed firms were given at least two years to have one diverse director or explain why they do not.² Companies listed on The Nasdaq Global Select Market or The Nasdaq Global Market, which must meet certain capitalization and liquidity requirements, have until August 6, 2025 (a total of four years) to add a second diverse director if they choose, or explain why not.³ Companies listed on the Nasdaq Capital Market, which has the lowest capitalization and liquidity requirement, have until August 6, 2026 (a total of five years) to meet the two-seat target if they choose.⁴

For companies with five or fewer board members, however, only the one-seat target ever applies. And any newly listed companies, regardless of size or listing, will have at least two years to conform to the Rule and their respective one (five or fewer board members) and two-seat targets or alternative explanation.⁵ Along with the phase-in and differentiation, the Rule creates a one-year grace period for companies that previously satisfied the Rule but no longer do because of a vacancy on the board.⁶ In recognition of the unique racial and ethnic make-up of the United States, foreign companies also have additional leeway in defining underrepresented minorities for their reporting or in providing an explanation if contrary to local law.

The requirements, or lack thereof, for a company’s explanation of why it does not have the target number of diverse board members is important. For companies that chose to provide an explanation as an alternative, they must merely explain why those objectives were not met. And neither Nasdaq nor the SEC “evaluate the substance or merits” of the explanation, which provides companies substantial latitude to simply say their board composition is in line with their goals or to even disagree with the rule.

There are also substantial differences in how companies represent their diverse board members. Compare Citi Group’s disclosure⁷ with Apple’s.8 Citi met the diversity target, with 7 women directors and one “racially diverse” director, but did not identify individual directors by a diversity characteristic. Apple, in contrast, identified individual directors along various diversity characteristics – gender, LGBTQ+, race/ethnicity, and veteran status. Tesla provided a more “bare-bones” matrix than either while still meeting the diversity target, without mentioning LGBTQ+ identity at all.⁹

The fate of the Nasdaq Rule remains in question

When last year’s Monitor was published, two conservative advocacy groups, Alliance for Fair Board Recruitment (“AFFBR”) and National Center for Public Policy Research (“NCPPR”), had challenged the Nasdaq Rule and a decision was still pending before the Fifth Circuit Court of Appeals. Supporters of the rule breathed a sigh of relief in October of last year, when the Fifth Circuit panel upheld the SEC’s approval of the Nasdaq Rule, rejecting each argument of the multi-pronged challenge in October.¹⁰

The AFFBR and NCPPR argued that the Nasdaq Rule, or more specifically, the SEC’s approval of that rule, should fail for several reasons. Their arguments fell into two major lines: (1) the Constitutional arguments and the (2) “agency-authority” category.

The first category includes the Constitutional legal arguments that the Nasdaq Rule’s “comply or disclose” regime constitutes forced speech by companies in violation of the First Amendment, that the Rule imposed unlawful quotas in violation of the Equal Protection Clause, and that equating all “underrepresented” groups itself also conflicts with Equal Protection.

The second category of arguments focused on the legal authority and process followed for the Nasdaq Rule. In summary, they contended that the SEC acted with authority it did not have by approving the rule, because (1) this kind of disclosure is not authorized by the Exchange Act, (2) that the Rule itself is contrary to the Exchange Act, or that (3) the SEC did not rely on good enough evidence to justify approving Nasdaq’s Rule. NCPPR even suggests that the “Major Questions” doctrine might apply.

Initially, the AFFBR and NCPPR’s arguments failed with the three-judge panel initially hearing the case, which ruled that the Nasdaq was not a state actor and that the adoption of Nasdaq’s disclosure-based framework was within the SEC’s authority under the Exchange Act. Relief was short-lived, however, when the Fifth Circuit granted AFFBR’s petition for en banc review¹¹ by the full Fifth Circuit. The SEC initially drew three judges appointed by Democratic Presidents.¹²

Typical appeals, including petitions challenging agency action, are heard by a three-judge panel, comprised of judges somewhat randomly selected from the larger pool of judges in a given circuit. Though rare, the full court can choose to grant a petition to rehear a case en banc, which automatically vacates the panel opinion as if it never happened. That’s exactly what happened in this case.

What’s the status of the Nasdaq Rule?

For now, the Nasdaq Rule remains in full effect. However, its chances of survival are less than stellar in the Fifth Circuit. To rehear a case en banc, federal rules require a majority of active judges on a Circuit to vote in favor. Usually, a majority of the full Fifth Circuit votes to rehear a case if it believes, in all likelihood, the panel opinion did not get some aspect of its decision right. Advocates hoping for the Nasdaq Rule to be upheld have good reason to be concerned that the full Fifth Circuit could strike down the rule, setting the stage for a potential review by the Supreme Court later down the line.

With the 3-judge panel opinion vacated, AFFBR and NCPPR have reasserted most of their arguments before the full Fifth Circuit. And, as is typical for hot-button issues, both sides have seen new Amicus Curiae (“friends of the Court”) briefs filed in support of their positions. The Ed Blum-affiliated Petitioners are joined in support by more than 15 U.S. States, including Alabama, Ohio, Texas, Utah, Virginia, and South Carolina,¹³ as well as The Buckeye Institute,¹⁴ and some from the conservative legal academy, such as Sean J. Griffith.¹⁵

On the other side, the SEC filed its own amici briefs over the last two weeks backing the Nasdaq Rule, counting support from an “Ad Hoc Coalition of Nasdaq-listed Companies”¹⁶ that included, among others, companies such as Microsoft, Intel, Lyft, and Airbnb, numerous academics,¹⁷ former SEC-Commissioner Joseph Grundfest,¹⁸ and the NAACP Legal Defense Fund.¹⁹

If the Fifth Circuit strikes down the Nasdaq Rule, how it does so is important and will impact future efforts of the SEC and U.S. states. We believe a brief analysis of those possible outcomes is essential.

There may be less appetite for the Constitutional arguments. The groups challenging the Nasdaq Rule argue it violates the Constitution by encouraging discrimination and by violating companies' right to free speech. But in order to apply those requirements, they must show Nasdaq acted as part of the government—the so called “state action” requirement.

Though it was heavily briefed and remains a popular argument in some circles, AFFBR’s argument that the Nasdaq Rule’s “diversify or disclose” regime violates the First Amendment or Equal Protection may not be the golden ticket. Other Circuits have long considered SROs (like Nasdaq and the NYSE) to be private actors, not state actors. Therefore, unless it can be shown that the SEC and NASDAQ were “joint participants,” NASDAQ cannot be found to violate the First Amendment or the Equal Protection Clause—absent a departure from precedent.

Declaring that NASDAQ is a State Actor acting jointly with the SEC in this context would set up a conflict with longstanding precedent from other Circuits (a so-called “circuit split”) and would be the most likely way to land the case at the Supreme Court. And the Supreme Court is already set to issue a decision this summer on compelled speech where state action is in question.²⁰ What the Court ultimately says about state action could influence the Fifth Circuit’s willingness to rely on these arguments.²¹ Second, their strongest arguments—that the Nasdaq Rule does create quotas, lacks tailoring, or enables discrimination—rely on factual findings that, with a year of reporting now available, are not borne out by facts. As Joseph Grundfest pointed out in his briefing, labeling the Nasdaq Rule’s “diversify or explain” disclosure framework as a “quota” is a complete “strawman,” given that the Nasdaq Rule has no gender or race quotas. Not only that, director disclosure of their identity is entirely voluntary, as is the company’s decision to report aggregate or individual data. The amount of explicit voluntary choice in the Nasdaq Rule should, in most Courts, win the day.

Hungry to rein in agencies

While the Fifth Circuit might blink at sending yet another State Action case to SCOTUS, it is likely far more secure to strike the Nasdaq Rule on administrative law grounds, either because the Nasdaq Rule itself violates the Exchange Act, was approved by the SEC with insufficient evidence, or most simply, that the Exchange Act does not authorize this kind of disclosure requirement.

In the lead-up to oral argument, the Fifth Circuit explicitly requested that lawyers on both sides be prepared to address the Nasdaq Rule’s “relation to the Exchange Act and what was raised before the SEC in that regard.”²² Though reading into court requests is not a reliable bellwether, the explicit request to address the agency record and the Exchange Act, which provides the basis for SEC rulemaking and authority regarding Nasdaq, might reveal some judges’ preferences to avoid the forced speech, discrimination, and state action issues.

Instead, it can sit comfortably in its wheelhouse by limiting the SEC’s authority to make or approve rules, which is very much in line with observed trends in the Fifth Circuit. The en banc Fifth Circuit also has a buffet of arguments to choose from that are less likely to draw scrutiny from an agency-averse SCOTUS. Anti-agency rulemaking is ascendant in the Fifth Circuit, with so-called “Major Questions” challenges finding remarkable levels of success compared to other circuits since the Supreme Court officially adopted the doctrine in West Virginia v. EPA (climate change rule)²³ and Biden v. Nebraska (student loans).²⁴ Based on data compiled by Bloomberg, there have been more successful Major Questions challenges in the Fifth Circuit than the number of major questions cases in any other circuit.

The Fifth Circuit could also seize on several other aspects of the Exchange Act, such as its prohibition on rules that “permit unfair discrimination” between issuers, which AFFBR claims the Nasdaq Rule does. Or, they could attack the basis of the SEC’s approval, which largely relied on statements from investor groups that the rule was necessary, helpful, and would create efficiency in the proxy voting process by creating a heightened evidence requirement before the SEC can approve proposed rules from SROs. One thing readers should keep in mind: the Fifth Circuit is quite aware of its options when it comes to restricting agency action.

Oral arguments were held on May 14, 2024, with the Fifth Circuit’s questions heavily geared towards parsing whether the Nasdaq Rule was consistent with purpose of the Exchange Act. AFFBR submitted its supplemental briefing on March 21, 2024, followed by the SEC’s supplemental briefing filed on April 29, 2024. If the En Banc Fifth Circuit rules in favor of AFFBR and NCPPR, the SEC will have 90 days to file a petition for writ of certiorari to the Supreme Court, which could tee up these issues for a final resolution.

SEC delays action on its own Diversity Disclosure Rule

As the Nasdaq Rule winds its way through the courts, the SEC has slowed the adoption of its own rule governing diversity disclosure that would apply to other SROs, such as the New York Stock Exchange (NYSE). The SEC’s Fall 2023 regulatory agenda originally indicated that it would propose new corporate board diversity disclosure rules in April 2024 to enhance disclosures about the diversity of board members and nominees. This would mark the fourth time that the SEC has considered amending its board diversity rule to go beyond the current requirements of Item 407(c)(ii)(vi) of Regulation S-K. But the anticipated date for the proposed rule has been pushed to October 2024, after which it will enter a notice and comment period and most likely face legal challenges on its way to becoming a final rule.

Current guidance related to Item 401 requires covered companies to disclose if they consider diversity in selection of candidates and related policies. However, the rule allows companies to self-define diversity in their disclosures, even though official guidelines do include “sexual orientation” among its “diversity characteristics,” alongside race, gender, ethnicity, religion, nationality, disability, and cultural background.²⁵ If a company has a diversity policy, or considers those characteristics in its nomination processes, the current rule simply requires a company to describe their process or efforts. In light of the SEC’s approval of the Nasdaq Rule, advocates hope that the next disclosure regime is more forceful and inclusive of LGBTQ+ identity in its diversity definition.

Since the SEC announced its intent to revisit its diversity disclosure rule, numerous stakeholders – from institutional investors to advocacy groups – have sent letters to the SEC encouraging the agency to adopt a rule similar in substance and application to the Nasdaq Rule that affirmatively includes self-identified LGBTQ+ board members to satisfy diversity targets. The Latino Corporate Directors Association (LCDA),²⁶ the Women’s Power Gap Foundation,²⁷ Boston Trust Walden,²⁸ and Nia Impact Capital²⁹ are just a few of the advocacy groups that have written directly to the SEC to advocate for a rule similar to the Nasdaq Rule that would require disclosure of a diversity matrix that is inclusive of voluntary LGBTQ+ disclosure for board members.

Their reasoning is similar to the reasoning that justified the SEC’s approval of the Nasdaq Rule in the first place. Board diversity information is important, in-demand, and helpful to investors. Current disclosure under Item 407(c)(ii)(vi) is amorphous, non-specific, and does not require disclosure of any identity in particular. Without a more defined diversity disclosure requirement, they argue, there is no efficient way for investors to compile data on board composition or diversity. The result is unnecessary time and expense to procure that data that many investors simply lack, forcing them to make valuable investment decisions with imperfect information or that may be contrary to their clients’ stated goals.

If the Nasdaq Rule is ultimately enjoined or narrowed by the En Banc Fifth Circuit, any proposed SEC rule that imposes a similar regime will have an even steeper legal hill to climb. For one, a rule proposed by the SEC would clearly involve a “state actor”, leaving it open to the constitutional challenges that would no longer have to clear the first hurdle of establishing the involvement of a “state actor.” More salient, the SEC will likely have to justify and explain the promulgation of its own rule more substantially than it does a rule proposed by an SRO, like Nasdaq.

That said, the longer the Nasdaq Rule remains in effect, the more time that the SEC has to develop support for its own rule. It can point to the low burden on companies that have either offered explanations for missing targets or included the diversity matrix in their disclosures without issue, in addition to the statements about value to investors that it originally relied upon to approve the Nasdaq Rule.

Beyond the SEC: States may be a more promising frontier

Beyond Nasdaq and the SEC, some States have begun acting to include disclosure of LGBTQ+ board members. Since California’s SB 826, which required publicly held companies headquartered in California to have at least one woman on their board of directors, met its judicial demise, states have wisely avoided enacting any laws that set actual quotas. Several states, however, have enacted diversity disclosure requirements, but those have typically left out LGBTQ+ from their diversity considerations.

Washington’s “diversify or disclose” law, for example, only requires a gender diverse board to avoid an explanation. Companies who fail to meet the requirement must provide a disclosure that includes an explanation of the company’s commitment or representation of “diverse groups,” which includes women, racial minorities, and (undefined) “historically underrepresented groups.”³⁰ Maryland also has a requirement applying to “underrepresented communities,” but the definition is limited to minority racial and ethnic groups by statute.³¹

Illinois, however, has required disclosure for self-identified gender, race, and LGBTQ+ status for board members and executive officers in annual filings since 2020, even though its diversity target for board composition does not include LGBTQ+. The law also charges the University of Illinois to compile yearly reports and company rankings based on the data.

LGBTQ+ representation on boards of companies headquartered in Illinois was not added as a disclosure group until 2022. In the first year the requirement came into effect, only three companies indicated having one director disclosing an LGBTQ+ identity, with 22 companies disclosing that they have zero directors identifying as LGBTQ+. Glaringly, though, 75 companies chose not to provide a disclosure about sexual orientation or LGBTQ+ status at all.

After another year, based on the University of Illinois’s most recent report, the willingness to disclose LGBTQ+ representation is slowly increasing. In 2023 filings, seven companies have now indicated having at least one director disclosing an LGBTQ+ identity.³² Unfortunately, the report does not provide insight into how many companies declined to disclose LGBTQ+ representation at all for the most recent year. And the barely-one-paragraph section related to LGBTQ+ board member disclosures out of the 13-page report is illustrative of the long road that remains for LGBTQ+ representation and transparency in the boardroom.

Certain states may adopt disclosure regimes that are inclusive of LGBTQ+ identity as a way to circumvent the current judicial environment, which is poised and willing to limit the rulemaking authority of federal agencies. With many courts, including SCOTUS, skeptical of administrative action, agencies will continue to face legal challenges. In their briefing before the Fifth Circuit, one argument raised by AFFBR is that the regulation of corporate board composition is a matter left to the states, not federal agencies.³³ Though the challengers focus on this matter being left to the states, undoubtedly state law challenges will likely follow; however, they are correct that business organizations are created under state statutes, and advocacy at the state level for LGBTQ+ board member diversity targets and disclosures will be critical if federal agency action fails. Though less impactful than a national rule, action taken by states, as opposed to federal agencies, is less susceptible to legal challenge as long as state legislatures avoid blatant Equal Protection problems, such as the affirmative quotas that doomed California’s law. Further, advocacy can be concentrated in a handful of states, like Delaware, New York, and California, that would result in de facto “national” rules due to the number of firms that are either incorporated or headquartered in those states.

Global update

Action regarding board-level diversity disclosure laws and guidelines are not just a U.S. phenomenon. Law-making bodies, advocates, and stakeholders are working around the globe to increase transparency and representation for underrepresented groups.

United Kingdom: In April 2022, the UK Financial Conduct Authority (FCA) published its Policy Statement³⁴ on diversity and inclusion for company boards and executive management. The new rules apply to certain listed companies and require certain companies to include a “comply or explain” type statement in their annual reports: a "comply or explain statement " on whether 40 percent of the board is made up of women and at least one member who is a non-White ethnic minority. The target for women board members does include self-identified women. They did address the lack of LGBTQ+ disclosure in their Policy Statement and the criticism they’ve received, only to say that they may revisit the issue later.

On September 25, 2023, the FCA and the Prudential Regulation Authority (PRA) published consultations setting out their proposals to introduce a new regulatory framework on diversity and inclusion (D&I) in the financial sector. Though the consultations mentioned potential for D&I targets at various levels, including the board, regulators have not proposed any specific demographics or characteristics as part of the consultation, nor revealed what they should be.

Regulators are expected to review the feedback and develop final regulatory requirements for the new Policy Statements sometime in 2024. However, it’s been extremely quiet through the Spring, so far.

Canada: Since January 2020, public companies existing under the Canada Business Corporations Act (“CBCA”) have had to make certain disclosures about the diversity of their boards of directors and C-suites. The disclosure centers on the representation of four designated groups: women, Indigenous peoples, persons with disabilities and members of visible minorities. Among other things, CBCA companies have to disclose annually whether they have targets in place to enhance representation by these four groups and, if not, why not.

Last year, Canadian Securities Administrators (“CSA”) proposed amendments to the disclosure guidelines and requested comments regarding alternative diversity disclosure requirement proposals, one of which would expressly add LGBTQ+ status as a reporting metric.

The proposed amendments envision two proposed alternative models, which are endorsed by different provincial regulators. Some regulators, such as those in Alberta and Saskatchewan, have expressed support for a model that would require an issuer to disclose its approach to diversity for the board and senior management, but would not mandate disclosure about any specific groups, other than women. Under this first alternative, an issuer would be left to determine the groups whose representation on its board or in senior management positions form part of its diversity strategy.

Other regulators, such as the Ontario Securities Commission prefer the second alternative that would require reporting on the representation of five designated groups: women, Indigenous peoples, racialized persons, persons with disabilities and LGBTQ2SI+ persons, on boards and in executive officer positions.

The proposed amendments to Form 58-101F1 (Corporate Governance Disclosure of National Instrument), Form 58-101 (Disclosure of Corporate Governance Practices), and proposed changes to National Policy 58-201 (Corporate Governance Guidelines) were published on April 13, 2023 and the comment period was originally scheduled to close on July 12, 2023. However, in response to stakeholder feedback indicating that it would be beneficial to have additional time to review the proposals and prepare comments, the CSA has extended the comment period to September 29, 2023. But Canadian regulators have been mostly silent since the end of the expanded comment period, with no official announcement on implementation or adoption of a final rule.

Japan: Under intensifying pressure, the percentage of women on boards at major Japanese firms inched up to 16.6 percent in 2023, according to a survey by Nikkei xWoman.³⁵ But LGBTQ+ diversity in the boardroom remains essentially unaddressed by policymakers to date.

France: More than ten years since its pioneering Copé Zimmerman Law came into effect in 2011, which has had a sweeping impact in achieving gender parity on corporate boards, France is exploring ways to promote racial/ethnic minority representation on corporate boards. But advocacy groups argue bolder action is still needed on LGBTQ+ inclusion.

Australia: The Australian Association of LGBTQ+ Board and Executive Inclusion (ALBEI) has been active in encouraging companies and regulators to address representation in the C-Suite. A recent survey from ALBEI found that only one percent of board members across the ASX300 self-identify as LGBT,³⁶ and zero board members were willing to disclose a disability or identify as disabled. Further, only two Australian companies in the ASX200, Woodside Energy and Block Inc., publicly report diversity on its board on identity beyond gender, including both LGBTQ+ and First Nations.³⁷ Block, however, is the only one with a diversity target for its board, according to a report by ALBEI. Coincidentally, Block Inc. is also listed on the Nasdaq.

While more countries are taking steps to address the LGBTQ+ diversity gap in boardrooms, consistent action remains elusive. Although there are chapters of the Association of LGBTQ+ Corporate Directors working around the globe, including in Canada, Australia, and the UK, efforts in the EU and Asia have partially stagnated, relying instead on engagement and voluntary efforts from corporations.

[1] Board Diversity Disclosures, KPMG (last visited September 5, 2024)

[2] Nasdaq Rule 5605(f)(7)(A)

[3] Nasdaq Rule 5605(f)(7)(B)

[4] Nasdaq Rule 5605(f)(7)(C).

[5] Nasdaq’s Board Diversity Rule, What New Companies Listing on Nasdaq Should Know, Nasdaq.com, Feb. 18, 2022

[6] Nasdaq Rule 5605(f)(6)(B)

[7] Proxy Statement for Citigroup Inc., (Apr. 25, 2023)

[8] Proxy Statement for Apple Inc., (Jan. 11, 2024)

[9] Proxy Statement for Tesla, Inc., (Apr. 29, 2024)

[10] AFFBR v. SEC, 85 F.4th 226 (5th Cir. 2023).

[11] AFFB v. SEC, Cause No. 21-60626, 2024 WL 670403 (5th Cir. Feb. 19, 2024).

[12] Of active Fifth Circuit judges, only five out of seventeen judges sitting on the Fifth Circuit were appointed by a Democrat.

[13] Brief for Utah and 23 Other States as Amici Curiae in Support of Petitioners, AFFBR v. SEC, No. 21-60626, Doc. 378.

[14] Brief for The Buckeye Institute as Amici Curiae in Support of Petitioners, AFFBR v. SEC, No. 21-60626, Doc. 374.

[15] Brief for Sean J. Griffith as Amici Curiae in Support of Petitioners, AFFBR v. SEC, No. 21-60626, Doc. 379.

[16] Brief for Ad Hoc Coalition of Nasdaq-Listed Companies as Amici Curiae Supporting Respondent, AFFBR v. SEC, No. 21-60626, Doc. 429-2.

[17] Brief for Academic Experts in the Fields of Business, Management, and Economics as Amici Curiae Supporting Respondent, AFFBR v. SEC, No. 21-60626,Doc. 445-2

[18] Brief for Joseph A. Grundfest, Esq. as Amici Curiae Supporting Respondent, AFFBR v. SEC, No. 21-60626, Doc. 458-2

[19] Brief for NAACP Legal Defense & Educational Fund as Amici Curiae Supporting Respondent, AFFBR v. SEC, No. 21-60626,Doc. 463-2

[20] Webb, Erin, “More Major Questions Doctrine Decisions Are Coming”, Bloomberg Law (Nov. 5, 2023)

[21] NetChoice v. Paxton, No. 22-555. Oral Argument available at Oyez

[22] AFFBR v. SEC, Minute Entry, No. 21-60626, Doc. 363

[23] Available at: https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf

[24] Available at: https://www.supremecourt.gov/opinions/22pdf/22-506_nmip.pdf

[25] C&DI 116.11.

[26] Available at: https://www.sec.gov/comments/4-787/4787-282280-689923.pdf

[27] Available at: https://www.sec.gov/comments/4-787/4787-423419-1031983.pdf

[28] Available at: https://www.sec.gov/comments/4-787/4787-293219-713222.pdf

[29] Available at: https://www.sec.gov/comments/4-787/4787-757222.htm