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- SEC has taken another loss in court, with the Court of Appeals for the Fifth Circuit ruling against the agency in its legal battle with the National Association of Manufacturers.
- Under Gary Gensler’s command, the SEC attempted to suspend a 2020 rule targeting proxy advisory firms, but the court has termed this a breach of the federal regulatory guidelines.
Since taking over as the new SEC tsar, Gary Gensler has waged dozens of legal battles against private companies, winning some and losing others. However, in recent times, he has been taking one loss after another, many of them high-profile, as the tide continues to turn against him. The latest loss has ruled out his attempt to drop a 2020 rule that extended the SEC’s reach to proxy advisory firms.
It all started in July 2020 when the SEC, then under the stewardship of former chair Jay Clayton, expanded its oversight to proxy advisory firms. These companies gather information about board proposals and guide shareholders in the voting process. This makes them a critical cog of the capital market as they influence the direction any public company takes.
Naturally, the SEC felt it needed to oversee these firms to prevent manipulation, and in 2020, it got the federal authority to police them.
Then came Gensler. Immediately after he took over, he directed his staff to re-examine the 2020 rule and sought to rescind it. Legal battles followed, with the National Association of Manufacturers leading efforts to prevent the SEC from relinquishing its oversight of the sector.
NAM and the SEC have been locked in a legal battle since, going all the way to the US Court of Appeals for the Fifth Circuit. This week, the New Orleans-based court ruled against the SEC, handing Gensler yet another high-profile loss.
Another court slams the SEC. This time for unlawfully rescinding a rule on proxy advisory firms without adhering to the Administrative Procedure Act. The court explains that Gensler personally directed this illegal move.
National Association of Manufacturers v. SEC. pic.twitter.com/NrXrV4x7OG
— Stuart Alderoty (@s_alderoty) June 27, 2024
Commenting on the ruling, NAM Chief Legal Officer Linda Kelly stated:
This decision confirms that federal agencies are bound by the rule of law, even as administrations change. 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.
Another Loss for Gensler’s SEC
It’s not the first loss Gensler has taken regarding the proxy rule. In February this year, the US District Court for the District of Columbia termed his attempt to rescind the rule as “contrary to law and in excess of statutory authority when it amended the proxy rules’ definition of ‘solicit’ and ‘solicitation’ to include proxy voting advice for a fee.”
Gensler’s losses extend to crypto, where he has lost some high-profile cases and has been forced to scale down his aggressive tactics on several other cases. Just recently, he decided against pursuing legal action against ConsenSys, the Ethereum incubator, in a lawsuit that could have potentially spiralled into the critical question of whether ETH is a security, as Crypto News Flash reported.
But by far the biggest case Gensler is pursuing is against Ripple and whether XRP is a security. Even on this, he has lost some key battles along the way, forcing him to readjust his targets and dismiss cases against CEO Brad Garlinghouse and founder Chris Larsen, as Crypto News Flash reported.
The end of the Ripple lawsuit is edging ever closer, and with it, an anticipation that the SEC is about to lose its biggest case yet. Gensler seems aware of the impending doom and has been scaling down his expectations progressively. Initially, he wanted $2 billion from Ripple, but it has since been slashed significantly to around $100 million. Ripple has even floated $10 million as the maximum penalty, which in essence would be a landslide victory for the blockchain payments firm.
For Gensler, the Ripple case could be a defining moment that will define his legacy. Already, some legislators have turned against him, with industry insiders revealing that some key officials in the Biden administration regard him as a liability in a critical election year.
Meanwhile, the XRP community has managed to withstand the test of time and while it has failed to scale the heights of this year’s bull market, XRP is still firmly among the largest projects in the space.
At press time, it trades at $0.479, gaining 1.77% in the past day for a $26.67 billion market cap.
