As signaled by the media, on August 6, the SEC approved Nasdaq’s proposed board diversity disclosure listing rule (we reported on here and here – see “Nasdaq”) and companion complimentary board recruiting service. According to Nasdaq's updated guidance, annual board diversity matrix disclosure is required by the later of August 8, 2022, or the date the company files its proxy or information statement for the company’s annual shareholder meeting during 2022. The diversity objectives and transition periods for companies to meet those objectives, or explain why they don't, vary by issuer type, listing tier, and board size, as outlined in that guidance and Fenwick's briefing.
While supporting the recruiting services proposal and the notion of board diversity generally, Commissioner Elad Roisman dissented from the majority’s approval of the board diversity disclosure rule based on concerns about the sufficiency of the Commission’s analysis of the proposal under the Exchange Act and its potential characterization as “state action.” Commissioner Pierce also opposed the disclosure proposal on numerous grounds, including its inconsistency with the Exchange Act and fundamental constitutional principles.
Nasdaq will be holding a series of webinars to assist companies with implementation, the first of which is scheduled for August 17 (register here). We previously reported on the FAQ’s, which address a number of practical considerations.
See these statements from SEC Chair Gary Gensler and Commissioners Allison Herren Lee and Crenshaw; this WSJ article; and numerous additional resources on our Board Diversity page under Memos»Regulatory and Regulatory»Federal.