ICR D.C. Insider: September 2022

In the September 2022 edition of The ICR D.C. Insider, we share our insights and analysis about developments in Washington that could have an immediate and long-term impact on your business.

The SEC

• Universal Proxy Access – The September 1^st commencement for the use of new universal proxy cards in director election contests is expected to lead to increased proxy contest threats and confer advantages on dissident proxy campaigns. Under the new rules, a single card containing the names of all nominated directors, from the company and dissidents alike, will be sent to shareholders. Now, investors can mix-and-match and vote for candidates from both slates, even if they are not voting in-person.
• New Executive Pay & Corporate Performance Disclosures – The SEC voted 3-2 to mandate companies disclose how well top management’s pay tracks with corporate performance. Under the rule, U.S. public companies must provide performance measures covering a period of up to five years. The new disclosure requirements in proxy and information statements will be required to include Item 402 executive compensation disclosure for companies with fiscal years ending on or after December 16, 2022.
• Strategic Plan Published – The SEC’s fiscal years 2022-2026 Strategic Plan was released for public comment. Every four years, federal agencies are required to outline their missions, initiatives, and goals. This plan articulates three goals:
  1. Protect working families against fraud, manipulation, and misconduct.
  2. Develop and implement a robust regulatory framework that keeps pace with evolving markets, business models, and technologies.
  3. Support a skilled workforce that is diverse, equitable, inclusive, and is fully equipped to advance agency objectives.
• Whistleblower Authority & Payments Increased – To further incentivize whistleblower tips, the SEC enacted two rule changes. The first allows the Commission to pay whistleblowers for their information and assistance in connection with non-SEC actions; and the second enables the Commission to consider increasing, but not decreasing, the total amount of an award.
• Pushback Continues Against The SEC’s Regulatory Proposals – Brokerages, hedge funds, private-equity firms, mutual funds, high-frequency trading firms, and public companies continue to argue that the costs of many of the SEC’s recent raft of proposals outstrip the benefits, and that the Commission’s economic impact assessment of its rules are flawed. Former regulators and lawyers say Chair Gensler’s agenda is the SEC’s most aggressive in decades.
• Response To ESG Funds & “Greenwashing” Proposals – Trade association continue to respond to the SEC’s May 2022 vote to issue two proposed rules that would give investors more information about mutual funds, exchange-traded funds, and similar vehicles that take ESG factors into account. As the association representing regulated investment funds, The Investment Company Institute (ICI) pointed to the overly complex and likely expense of the proposals, and the Forum For Sustainable and Responsible Investment (US SIF), a pro-sustainable investing group, advocated for additional clarity for the rules, and also noted potential compliance expenses.

National Labor Relations Board

• A Focus On Franchise Businesses – The NLRB released a highly anticipated proposal that would broaden the legal standard for determining whether a worker is employed jointly by multiple employers. The proposed rule would establish two or more employers as joint employers if they “share or codetermine” key employment conditions, such as pay, scheduling, workplace safety, and employee discipline policies. Under the proposed new rule, workers or contractors at certain chain establishments would be counted as employees of the parent company, rewriting the rules for thousands of franchise businesses.

The FTC

• Online Privacy – The agency held an online public forum as part of its next steps following last month’s 3-2 vote to issue proposals for public comment that would crack down on harmful commercial surveillance and lax data security.
• Strategic Plan Published – The FTC published its fiscal years 2022-2026 Strategic Planand its fiscal years 2021-2023 Performance Report and Performance Plan. The agency articulates three goals:
  1. Protect the public from unfair or deceptive acts or practices in the marketplace.
  2. Protect the public from unfair methods of competition in the marketplace.
  3. Advance the FTC’s effectiveness and performance.
• Digital Advertising & Kids – The FTC is seeking additional public comment in conjunction with a planned October 19, 2022 event focused on how children are affected by digital advertising and marketing messages that may blur the line between ads and entertainment.

Key Developments

• ESG Targeted & Its Defense – BlackRock is striking back at some Republican attorneys general who have criticized the world’s leading asset manager over its ESG investment policies. The company argues that its critics are wrong on the science and the financials. Last month, 19 Republican attorneys general sent a letter to BlackRock, essentially arguing that its goal of moving toward a net-zero economy is in conflict with its fiduciary duty. The crusade against ESG investments is an issue that many conservatives feel deeply about – they view these companies as cultural enemies who are misusing investment funds to promote pro-climate policies. House Republicans have said they plan to make an assault on ESG a central part of their legislative and investigative agenda if they take back a Congressional majority in November’s mid-term elections.
• Federal Government Funding/Shutdown – Congress is working toward passage of a stopgap funding plan to keep the U.S. Government open past the end of its current fiscal year (September 30^th). Given the November elections, it is widely expected that a Continuing Resolution (CR) will be passed. It’s unclear how long the CR will last.
• Republican Senators v. The CFPB – A dozen Republican Senators wrote a scorching letter to CFPB Director Rohit Chopra, that begins: “We are deeply concerned that under your leadership, the Consumer Financial Protection Bureau (CFPB) has returned to its Obama-era roots as a lawless and unaccountable agency.” The senators sent the letter in part because in April 2022, the CFPB amended its rules to give the CFPB Director discretion to publicly disclose his decision to supervise a nonbank, which the agency’s rules previously treated as confidential information. Notably, the CFPB’s rule change did not give a nonbank the same discretion in order to defend itself.
• China
  • Technology I – This fall, the Commerce Department is expected to continue to roll out new initiatives targeting Chinese technology supply chains, and the semiconductor space in particular. The Biden Administration has targeted the export of advanced semiconductor manufacturing equipment and semiconductors critical for China’s high-tech industries, namely artificial intelligence (AI). There are several other initiatives under consideration, including broader export bans on chips and individual company-level investigations into potential export control violations by Chinese companies.
  • Technology II – There are also possible Executive Orders that could sharply restrict American investments in China, Iran, Russia, and North Korea; and another that would limit how Chinese internet companies can collect data on U.S. citizens (including TikTok, the social media app with more than one billion users, including 200 million downloads in the U.S.).
  • Uyghur Forced Labor Prevention Act Enforcement – More than two dozen Republicans in the House want U.S. Customs and Border Protection (CPB) and the Treasury Department to answer questions about enforcement of the Uyghur Forced Labor Prevention Act, a law that went into effect in June to stem the import of goods linked to Uyghur forced labor.
  • Tariffs – President Biden is holding back on a decision to scrap Trump-era tariffs on China imports, while the Administration studies ways to help businesses seeking relief, via the Office of the U.S. Trade Representative. This issue is expected to be discussed between President Biden and Chinese President Xi Jinping during the Group of 20 Summit in mid-November.
• Technology Companies In Danger Of Losing Liability Shield – President Biden has called on Congress to revoke Section 230 of the Communications Decency Act of 1996 that currently serves as a liability shield that allows tech platforms to disseminate content without being liable for it. Only Congress can rewrite this law, which isn’t likely to happen in the near future.

Cryptocurrencies

• The Jockeying to Regulate Crypto Isn’t Stopping – Competition continues to intensify between regulators, congressional committees, and other stakeholders with vested interests across the crypto space:
  • On September 8^th, SEC Chair Gary Gensler delivered a speech and signaled that he would support Congress handing more authority to the CFTC in the crypto arena, so long as it doesn’t take away power from the SEC in other areas. He added that while the SEC may not necessarily oversee bitcoin, the majority of crypto tokens are securities that fall under SEC jurisdiction and should comply with investor-protection laws. Gensler also said it is possible some crypto intermediaries would need to be dually registered with his agency and the CFTC, similar to the way some brokers and mutual-fund firms are overseen by both agencies.
  • Chair Gensler is scheduled to appear before the Senate Banking Committee on September 15^th for an oversight hearing, and discussions of crypto regulation are expected.
  • At the same time, SEC Director of Enforcement Gurbir Grewal made it clear that the Commission is by no means backing down from enforcement in the crypto space.
  • The SEC also will set up two new offices to deal with filings related to crypto assets and the life sciences sector. The Office of Crypto Assets and the Office of Industrial Applications and Services will join seven existing offices in the Division of Corporation Finance.
  • The Senate Agriculture Committee (which oversees the CFTC) has scheduled a September 15^th markup (review) of the bill that Chair Debbie Stabenow (D-Mich.) and Sen. John Boozman (R-Ark.) proposed earlier this year that would position the CFTC as the primary crypto regulator.
  • Federal Reserve Chair Jerome Powell called for legislation for stablecoins, noting the current absence of a regulatory framework.
  • The Treasury Department let it be known that they believe cryptocurrencies could pose significant financial risks that outweigh their benefits unless the government rolls out major new regulations – and doesn’t delay too long.
  • Republicans on the House Financial Services Committee want Federal Reserve Vice Chair Lael Brainard to clarify her testimony from May on the Fed’s authority to issue a Central Bank Digital Currency (CBDC) absent specific authorizing legislation from Congress.
  • Raja Krishnamoorthi (D-IL), Chair of the House Oversight Subcommittee on Economic and Consumer Policy, sent nine letters to government agencies and crypto exchanges in a two-pronged approach demanding a greater degree of consumer protection from crypto fraud, and rebuking regulators for their inability to sort out crypto regulation.