Cydney Posner on Diversity

SEC’s Spring 2024 agenda delays most actions until 2025

As reported by Bloomberglaw.com, during an interview in February on “Balance of Power” on Bloomberg Television, SEC Chair Gary Gensler said that he does not intend to “rush” the SEC’s agenda “to get ahead of possible...more

7/10/2024 / Board of Directors , Corporate Governance , Disclosure Requirements , Diversity , Publicly-Traded Companies , Securities and Exchange Commission (SEC)

What does the Nasdaq board diversity data tell us?

As you know, the Nasdaq board diversity disclosure requirements might be in jeopardy at the moment, as we await the decision of the en banc Fifth Circuit following oral argument in Alliance for Fair Board Recruitment and...more

6/14/2024 / Board of Directors , Corporate Governance , Disclosure Requirements , Diversity , Nasdaq

Dubious en banc Fifth Circuit hears oral argument on Nasdaq board diversity rules

In August 2021, the SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure, accompanied by a proposal to provide free access to a board recruiting service. The new listing rules adopted...more

5/15/2024 / Board of Directors , Corporate Governance , Disclosure Requirements , Diversity , Nasdaq

Fifth Circuit grants petition for rehearing en banc for Nasdaq board diversity rule

In August 2021, the SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure, accompanied by a proposal to provide free access to a board recruiting service. The new listing rules adopted...more

2/21/2024 / Board of Directors , Corporate Governance , Diversity , Nasdaq , Securities and Exchange Commission (SEC)

SEC’s Fall 2023 Reg-Flex Agenda is out—climate disclosure rules delayed again

The SEC’s Fall 2023 Reg-Flex Agenda—according to the preamble, compiled as of August 22, 2023, reflecting “only the priorities of the Chair”—has now been posted. And it’s Groundhog Day again. All of the Corp Fin agenda items...more

12/11/2023 / Board of Directors , Climate Change , Corporate Governance , Disclosure Requirements , Diversity , Securities and Exchange Commission (SEC)

It’s not over till it’s over: Petition filed for rehearing en banc on Nasdaq board diversity rule

As discussed in this PubCo post, on October 18, a three-judge panel of the Fifth Circuit denied the petitions filed by the Alliance for Fair Board Recruitment and the National Center for Public Policy Research challenging the...more

10/26/2023 / Board of Directors , Corporate Governance , Diversity , Nasdaq , Securities and Exchange Commission (SEC)

Fifth Circuit denies petition challenging Nasdaq’s board diversity rule

On Friday, August 6, 2021, the SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure, accompanied by a proposal to provide free access to a board recruiting service. The new listing...more

10/19/2023 / Board of Directors , Corporate Governance , Diversity , Nasdaq , Securities and Exchange Commission (SEC)

Starbucks decision to adopt DEI initiative within Board’s business judgment

In August last year, the National Center for Public Policy Research filed a complaint against Starbucks and its officers and directors, National Center for Public Policy Research v. Schultz, alleging that they caused...more

9/13/2023 / Board of Directors , Corporate Governance , Diversity , Diversity and Inclusion Standards (D&I) , Starbucks

Federal court holds unconstitutional California’s board diversity statute regarding “underrepresented communities”

There have been a number of challenges to California’s board diversity legislation, SB 826, the board gender diversity statute, and AB 979, the board diversity statute regarding “underrepresented communities.” In two cases,...more

6/1/2023 / Board of Directors , Corporate Governance , Diversity , Woman Board Members

Workplace sexual harassment has a cost—to shareholders

Workplace sexual harassment and related misconduct—a toxic boys’-club atmosphere—led to three recent cases against McDonald’s, its management and board. And studies have shown that workplace sexual harassment can have...more

3/29/2023 / Corporate Culture , Corporate Governance , Diversity , Fiduciary Duty , Popular , Sexual Harassment , Shareholders

ISS study finds percentage of racial/ethnic minority directors finally hits 20% mark

A study of companies in the Russell 3000 just released by ISS showed that, for the first time, directors who self-identified as racial and ethnic minorities accounted for 20% of all board directorships. The study found that...more

3/1/2023 / Board of Directors , Corporate Governance , Diversity , Institutional Shareholder Services (ISS) , Popular , Shareholders

Has the “internal affairs” doctrine been stretched too thin?

In this paper, Ann Lipton, an Associate Professor at Tulane Law School, contends that the “internal affairs” doctrine has gradually expanded its reach and, perhaps as a result, is now facing new challenges. As applied in...more

1/27/2023 / Board of Directors , Corporate Governance , Diversity , Internal Affairs Doctrine , Woman Board Members

“Diversity washing” is the new greenwashing

Is greenwashing old news? The latest component of ESG to be subject to a good scrubbing is diversity: specifically, “diversity washing.” What’s that? According to this paper authored by academics from several institutions,...more

1/24/2023 / Corporate Governance , Disclosure Requirements , Diversity , Diversity and Inclusion Standards (D&I) , Environmental Social & Governance (ESG)

Nasdaq simplifies “confusing” timing requirements for board diversity rules

A new rule change designed to simplify the rules regarding the timing of compliance with the Nasdaq board diversity listing rules has been filed by Nasdaq and declared immediately effective. As you probably remember, on...more

12/20/2022 / Board of Directors , Corporate Governance , Diversity , Nasdaq , Securities and Exchange Commission (SEC)

California Appeals Court reinstates injunctions against California Board diversity laws

You may recall that, earlier this year, two Los Angeles Superior Courts struck down as unconstitutional two California laws mandating that boards of public companies achieve specified levels of board diversity and enjoined...more

12/5/2022 / Board of Directors , California , Corporate Governance , Diversity , Woman Board Members

Fifth Circuit hears oral argument on challenge to Nasdaq board diversity rules—will the rules survive?

On Friday, August 6, 2021, the SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure, accompanied by a proposal to provide free access to a board recruiting service. The new listing...more

9/8/2022 / Board of Directors , Corporate Governance , Disclosure Requirements , Diversity , LGBTQ , Minorities , Nasdaq , Publicly-Traded Companies , Securities and Exchange Commission (SEC)

Board refreshment: are evaluations preferable to retirement policies?

A new report from The Conference Board (together with ESG data analytics firm ESGAUGE) , Board Refreshment and Evaluations, indicates that, in pursuit of board diversity—in skills, professional experience, gender,...more

8/10/2022 / Board of Directors , Corporate Governance , Diversity , Retirement , Retirement Plan

Have we made much progress on board racial and ethnic diversity?

After the murder of George Floyd in 2020 and the national protests that it triggered, many of the country’s largest corporations expressed solidarity and pledged support for racial justice and racial and ethnic diversity,...more

7/12/2022 / Board of Directors , Corporate Governance , Diversity , Proxy Season

Is expertise trouncing strategy? The Conference Board reports on board experience and diversity

In a recent report, Board Composition: Diversity, Experience, and Effectiveness, The Conference Board explores the implications for board composition of current trends toward ESG expertise and board diversity, together with...more

6/2/2022 / Board of Directors , Corporate Governance , Disclosure Requirements , Diversity , Environmental Social & Governance (ESG) , Securities and Exchange Commission (SEC)

California to appeal decision striking down board gender diversity statute

The California Secretary of State has announced that she has directed counsel to file an appeal of the May 13 verdict of the Los Angeles Superior Court in Crest v. Padilla, which ruled unconstitutional SB 826, California’s...more

5/23/2022 / Board of Directors , Corporate Governance , Diversity , Publicly-Traded Companies , Woman Board Members

California court determines board gender diversity statute violates California Constitution

You might remember that the first legal challenge to SB 826, California’s board gender diversity statute, Crest v. Alex Padilla, was a complaint filed in 2019 in California state court by three California taxpayers seeking to...more

5/17/2022 / Board of Directors , Corporate Governance , Diversity , State Constitutions , Woman Board Members

Board diversity statute for “underrepresented communities” held unconstitutional under California’s equal protection provisions

On April 1, the L.A. County Superior Court granted the plaintiffs’ motion for summary judgment in Crest v. Padilla, the taxpayer litigation challenging AB 979, California’s board diversity statute for “underrepresented...more

4/6/2022 / Board of Directors , Corporate Governance , Diversity , Publicly-Traded Companies

Court grants summary judgment to plaintiffs challenging California’s board diversity statute for “underrepresented communities”

As you may recall, SB 826, the California board gender diversity statute, is not the only California board diversity statute facing legal challenges. In 2020, AB 979, California’s board diversity statute for...more

4/4/2022 / Board of Directors , Corporate Governance , Diversity , Publicly-Traded Companies , Woman Board Members

California posts new report on board diversity— how much does it tell us?

It’s International Women’s Day! On March 1, the California Secretary of State, Dr. Shirley N. Weber issued the Secretary’s 2022 report required by SB 826, California’s board gender diversity law, and by AB 979, California’s...more

3/8/2022 / Board of Directors , Corporate Governance , Diversity , Publicly-Traded Companies , Woman Board Members

With the Court decision still to come, what happened in the first trial of California’s board gender diversity statute?