On October 31, 2023, the U.S. Fifth Circuit Court of Appeals
(the "Fifth Circuit") held in
Chamber of Commerce of the USA v. SEC, that when the
SEC adopted the Share Repurchase Disclosure Modernization rule (the
"Repurchase
Rule"), the "SEC acted arbitrarily and capriciously,
in violation of the APA, when it failed to respond to the
petitioners' comments and failed to conduct a proper
costbenefit analysis." The Repurchase Rule (effective July 31,
2023) would have called for detailed share repurchase disclosures
by issuers in upcoming annual reports on Form 10-K. On November 22,
2023, the SEC
issued an order postponing the effective date of the Repurchase
Rule pending further action by the SEC and petitioned the Fifth
Circuit Court for an extension of time to correct the defects in
the Repurchase Rule. On November 26, 2023, the Fifth Circuit
refused to grant the SEC's requested extension. Presumably, the
SEC will repropose the Repurchase Rule, but if it is readopted,
