INITIAL BRIEF
No. 10-1305
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
__________________________________________________________________
BUSINESS ROUNDTABLE and CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA,
Petitioners,
v.
SECURITIES AND EXCHANGE COMMISSION,
Respondent.
Petition for Review of Final Rule of the
United States Securities and Exchange Commission
__________________________________________________________________
OPENING BRIEF OF PETITIONERS
BUSINESS ROUNDTABLE and CHAMBER OF COMMERCE
OF THE UNITED STATES OF AMERICA
__________________________________________________________________
Robin S. Conrad
National Chamber Litigation
Center, Inc.
1615 H Street, N.W.
Washington, D.C. 20062
(202) 463-5337
Counsel for Petitioner
Chamber of Commerce of the
United States of America
Eugene Scalia
Counsel of Record
Amy Goodman
Daniel J. Davis
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
Telephone: (202) 955-8500
Facsimile: (202) 467-0539
escalia@gibsondunn.com
Counsel for Petitioners
RULINGS, AND RELATED CASES
Pursuant to Circuit Rules 26.1 and 28(a)(1), Petitioners state as follows:
(A) Parties and Amici:
The parties in this case are Petitioner Business Roundtable, Petitioner Chamber of Commerce of the United States of America, and Respondent United States Securities and Exchange Commission (“SEC”). No entity or individual has sought to file as an intervenor in this matter. The following entities and/or individuals have filed a notice of intention to participate as amici curiae: Investment Company Institute, Independent Directors Council, Teachers Insurance and Annuity Association of America, College Retirement Equities Fund, Council of Institutional Investors, California Public Employees’ Retirement System, California State Teachers’ Retirement System, State of Wisconsin Investment Board, Trustee of the New York State Common Retirement Fund, Oregon State Treasurer Ted Wheeler, New York City Employees’ Retirement System, Board of Education Retirement System of the City of New York, Teachers’ Retirement System of the City of New York, New York Fire Department Pension Fund, New York City Police Pension Fund, New Jersey Division of Investment, Washington State Investment Board, North Carolina Retirement System, and Colorado Public Employees’ Retirement Association.
Petitioners Business Roundtable and the Chamber of Commerce of the United States of America are organizations that have members who are issuers of securities and will be injured by the challenged rule through, among other things, expensive proxy contests, the distraction of directors and management from the performance of their responsibilities, and loss in shareholder value due to the threatened or actual election of certain shareholder nominees using company proxy materials.
Some Business Roundtable and Chamber members are also investment companies or investment advisers subject to the Investment Company Act of 1940 that will be injured by the challenged rule through, among other things, expensive proxy contests, the distraction of directors and management from the performance
of their responsibilities, and loss of value due to the threatened or actual election of certain shareholder nominees using company proxy materials.
The Chamber is also an investor in mutual funds that is interested in being able to invest in funds where shareholders are not forced to bear the costs associated with a shareholder nominee being included in the company proxy materials. Business Roundtable and the Chamber of Commerce of the United States of America have no parent corporation, and no publicly-held company owns 10 percent or more of their stock.
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