978-1285770178 Case Problem Case CPC-23-04 Part 1

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Chamber of Commerce of U.S. v. S.E.C.

C.A.D.C.,2006

District of Columbia Circuit.

when it failed to address a proposed alternative to the independent chair

affording an opportunity for public comment, to the prejudice of the Chamber. On

SECURITIES AND EXCHANGE COMMISSION, Respondent.

No. 05-1240.

Rule requires that mutual funds relying on the Exemptive Rules adopt certain

have (1) a board with no less than 75% independent directors and (2) an

condition. The court remanded the case to the Commission.

The Chamber now challenges the Commission’s decision not to modify the two

conditions in response to Chamber I. See Investment Company Governance,

August 10, 2005, the court stayed the two conditions.

443 F.3d 890

United States Court of Appeals,

With respect to the 75% independent director condition, the Commission,

although describing three methods by which a fund might comply with the

condition, claimed it was without a “reliable basis for determining how funds

would choose to satisfy the [condition] and therefore it [was] difficult to determine

412 F.3d at 143 (citing Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374

F.3d 1209, 1221 (D.C.Cir.2004)). With respect to the independent chair

condition, the court noted that the Commission had stated that an independent

chair may decide to hire more staff, but that it had no “reliable basis for

estimating … th[ose] costs.” Id. at 144 (citing Adopting Release, 69 Fed.Reg. at

suggested by the two dissenting Members of the Commission. See id. at 145

(citing standard set forth in Laclede Gas Co. v. FERC, 873 F.2d 1494, 1498

(D.C.Cir.1989)).

The Commission responded within a matter of days to the release of Chamber I.

The Commission explained that prompt action was required to avoid postponing

required to do), resulting in substantial investor losses that were well

documented at the time [the Commission] adopted the [Rule],” and left investor

confidence severely shaken, id.; see Adopting Release, 69 Fed.Reg. at 43,378.

In the Commission’s view, prompt action could best be accomplished by having

the same five Commissioners who had been considering mutual fund

dissenting).

The Commission decided it was unnecessary to reopen the rulemaking record for

further comment. Observing that it had previously given notice and called for

comment on the costs of complying with the two conditions, the Commission

concluded that “the information in the existing record, together with publicly

director condition. See id. at 39,392 n. 28, 39,391-94. The Commission viewed

the costs to an individual fund of the independent chair condition to derive

principally from the increased compensation for the independent chair and the

costs of additional staff, the latter cost estimated based on extra-record salary

surveys by the Securities Industry Association, a source on which the

benefits of the two conditions.” Id. at 39,395. “Whether the two conditions are

viewed separately or together,” the Commission stated, “even at the high end of

the ranges, the costs of compliance are minimal.” Id. This was true as well for

small funds. See id. at 39,396 n. 77. Accordingly, regarding section 2(c) of the

ICA, the Commission concluded: “[W]e do not expect the amendments to the

Release, 70 Fed.Reg. at 39,391 & n. 18.

The Commission also set forth its reasons for rejecting the alternative proposal to

the independent chair condition: “[I]n light of the nature of investment companies

and the purposes of the statutory prohibitions to which the Exemptive Rules

apply,” the Commission concluded that the condition requiring an independent

id. at 39,397. Further, the Commission observed, the independent chair was part

of a package of regulatory reforms designed to change the “boardroom culture,”

id., that would result in benefits that could not be accomplished by disclosure

alone, which to become meaningful faced several obstacles given the information

that would need to be imparted to an investor, see id.

[1] Link to KeyCite Notes The Commission maintains that the court lacks

jurisdiction to consider the Chamber’s petition because the Chamber lacks

standing under Article III of the Constitution. Specifically, the Commission

maintains that the Chamber has failed to show a continuing injury–in–fact and to

In Chamber I, the court held that the Chamber had standing in light of sworn

declarations regarding its investment in, and continuing desire to invest in,

mutual funds that are not governed in accordance with the Rule’s two conditions.

See Chamber I, 412 F.3d at 138. The court concluded these concrete actions

and intentions were sufficient because the “inability of consumers to buy a

injury through the September 19, 2005 sworn declaration of Stan M. Harrell,

Senior Vice President, Chief Financial Officer and Chief Information Officer of the

Chamber. See Sierra Club v. EPA, 292 F.3d 895, 899-900 (D.C.Cir.2002). Mr.

Harrell avers that the Chamber continues to hold investments in mutual funds,

four of which he identifies by name, and currently intends to continue making

small funds, there is no basis to conclude that the circumstances underlying

Chamber I ‘s holding that the Chamber had standing have changed.

[2] Link to KeyCite Notes The Chamber, in turn, challenges the Commission’s

authority to consider modifying the Rule prior to issuance of the court’s mandate

41, which addresses when the mandate of a court of appeals issues, and to

authorities holding that the pendency of an appeal “ ‘divests the district court of

control over those aspects of the case involved in the appeal,’ ” United States v.

DeFries, 129 F.3d 1293, 1302 (D.C.Cir.1997) (quoting Griggs v. Provident

Consumer Disc. Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per

Advisory Committee’s Notes (1998 amends., subdiv. (c)). The Chamber then

contends that treating district courts and administrative agencies as “divested” of

jurisdiction prior to issuance of the court’s mandate “is sensible in light of the[ir]

comparable role[s] … in developing a factual record and narrowing the issues for

review.” Petitioner’s Br. at 32. Such an approach, the Chamber contends, also is

district courts and courts of appeal are mutually exclusive regarding issues raised

in the appeal, see generally Charles Alan Wright, Arthur R. Miller, & Edward H.

Cooper, 16A Federal Practice & Procedure Jurisdiction §§ 3949.1, 3987 (3d

ed.1999 and 2005 Pocket Part), such as avoiding confusion or a waste of time by

having the same matter considered in more than one forum at the same time,

LLC v. SEC, 278 F.3d 21, 27 (D.C.Cir.2002). Thus, the Chamber must recognize

that its analogy based on Rule 41 is not informed by the concerns underlying

Article III. It observes that in DeFries this court stated that the principle that a

district court lacks jurisdiction to act until the court of appeals’ mandate issues is

“grounded in solid considerations of efficient judicial administration,” 129 F.3d at

(D.C.Cir.1987); Indep. U.S. Tanker Owners Comm. v. Dole, 809 F.2d 847, 855

(D.C.Cir.1987); see also Northern States Power Co. v. U S. Dep’t of Energy, 128

F.3d 754, 761 (D.C.Cir.1997). The Chamber would distinguish those cases on

the ground that in those instances the court instructed the agency to proceed,

and thus “wielded its mandate to determine when its action attains controlling

…. [t]he precise scope of these limitations has not been fully defined.” 511 F.2d at

388. Section 313 authorized the agency, upon application for rehearing, to set

aside or modify an order until the record in the proceeding had been filed in the

court of appeals and stated that, upon the filing of a petition for review, the

appellate court has exclusive jurisdiction to affirm, modify, or set aside the order.

permit amendment.

Id. The court cited Smith v. Pollin, 194 F.2d 349 (D.C.Cir.1952), which

established an exception under Rule 41 for district courts to reconsider an order

or judgment pending on appeal and to seek remand of the case if it decided to

grant relief, id. at 350. By parity of reasoning, the court in Alabama Power held

Alabama Power. Assuming, as in Alabama Power, that the statute limited the

Commission’s remedial power prior to the issuance of the mandate in Chamber I,

the Commission was not disabled from sua sponte considering whether to modify

the Rule’s two conditions. See ICA § 6(c), 15 U.S.C. § 80a-6(c). Because the

Commission decided not to modify the Rule, there is no need to consider

particularly as the goal of conserving judicial resources is served under the Smith

v. Pollin approach adopted in Alabama Power.

FN1. Section 43(a) of ICA provides:

Any person or party aggrieved by an order issued by the Commission … may

obtain a review of such order in the United States court of appeals within any

further findings of fact:

If application is made to the court for leave to adduce additional evidence, and it

is shown to the satisfaction of the court that such additional evidence is material

and that there were reasonable grounds for failure to adduce such evidence in

the proceeding before the Commission, the court may order such additional

order.

Accordingly, we hold that the Chamber has standing under Article III to bring its

petition challenging the Rule’s two conditions and that the Commission had

authority to consider whether to alter the conditions in response to Chamber I

prior to the issuance of the mandate.

presentation,” id. § 553(c). Among the information that must be revealed for

public evaluation are the “technical studies and data” upon which the agency

relies. See Solite Corp. v. EPA, 952 F.2d 473, 484 (D.C.Cir.1991).

[3] Link to KeyCite Notes[4] Link to KeyCite Notes Congress may vest broad

rulemaking authority in an agency, and even charge the agency with “swiftly and

rulemaking implicates the agency’s expertise, see Fresno Mobile Radio, Inc. v.

FCC, 165 F.3d 965, 971 (D.C.Cir.1999), more exacting review may be required

when the presumption of regularity is rebutted, as may occur when the agency

arrives at an identical result on remand under circumstances that throw into

question the regularity of its proceedings, see NRDC, 606 F.2d at 1049 n. 23;

Envtl. Def. Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 598 (D.C.Cir.1971).

[5] Link to KeyCite Notes[6] Link to KeyCite Notes Where the court does not

require additional fact gathering on remand, as in Chamber I, 412 F.3d at 145,

the agency is typically authorized to determine, in its discretion, whether such

fact gathering is needed, see Sierra Club v. EPA, 325 F.3d 374, 382

Serv. Orgs., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 745 F.2d 677,

684-85 (D.C.Cir.1984).

[7] Link to KeyCite Notes[8] Link to KeyCite Notes However, further notice and

comment are not required when additional fact gathering merely supplements

information in the rulemaking record by checking or confirming prior assessments

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 393 (D.C.Cir.1973). For

example, in Solite, the agency’s explanation of a rule rested on a survey, which

was not part of the rulemaking record, that the agency substituted for an older

report in the rulemaking record. Solite, 952 F.2d at 481. The court stated that

“consistent with the APA, an agency may use ‘supplementary’ data, unavailable

determination.” Community Nutrition, 749 F.2d at 57-58 (citations omitted). When

the agency relies on supplementary evidence without a showing of prejudice by

an interested party, see Solite, 952 F.2d at 484; Community Nutrition, 749 F.2d

at 58, the procedural requirements of the APA are satisfied without further

opportunity for comment, provided that the agency’s response constitutes a

684; see Air Transp. Ass’n, 169 F.3d at 7. By requiring the “most critical factual

material” used by the agency be subjected to informed comment, the APA

provides a procedural device to ensure that agency regulations are tested

through exposure to public comment, to afford affected parties an opportunity to

present comment and evidence to support their positions, and thereby to

First, the Rule’s two conditions were set out in materially the same terms in the

notice of proposed rulemaking, see Investment Company Governance, Release

No. 26,323, 69 Fed.Reg. 3472, 3473 (Jan. 23, 2004) (“NOPR”), thus providing all

interested parties the opportunity to comment on the proposed amendments and

specifically on their costs, see id. at 3481. Second, although the Commission

prejudice to the Chamber, and the public availability of those materials, in this

instance, does not merit an exception to the comment requirement of section

553(c). We therefore do not reach the Chamber’s contention that the

Commission’s decision to forgo further notice and comment and rely on extra-

record materials was arbitrary and capricious under the APA. Cf. Air Transp.

Commission was not required under section 553(b) to give further notice of the

two conditions. The NOPR identified the amendments to the Exemptive Rules,

proposed the 75% independent director and independent chair conditions, id.,

and solicited comments and empirical data on costs. See NOPR, 69 Fed.Reg. at

3473. In relevant part, the NOPR stated:

resulting costs materially affect the efficiency, competition, and capital formation

of funds? Comments will be considered by the Commission in satisfying its

responsibilities under section 2(c) of the Investment Company Act. Commenters

are requested to provide empirical data and other factual support for their views

to the extent possible.

however, required further opportunity for comment under section 553(c). The

Commission justified its decision not to reopen the comment period on the

ground that “the information in the existing record, together with publicly available

information upon which we may rely, is a sufficient base on which to rest the

Commission’s consideration of the deficiencies identified by the Court.”

on privately produced “Management Practice Inc. Bulletin[s],” id. at 39,392 nn.

24, 28, 30; id. at 39,393 nn. 33, 43; id. at 39,394 n. 48; id. at 39,395 n. 73, and a

nonpublic survey of compensation and governance practices in the mutual fund

industry that is summarized in one of these bulletins, id. at 39,392 n. 28. Neither

the bulletins nor the survey were part of the rulemaking record. Nor did the

annual salaries for directors, id. n. 28 (summarizing the “widely used” survey),

and the rough breakdown between boards overseeing a large number of

individual funds and boards overseeing a small number of funds, id. n. 30. With

these three assumptions-average number of board members, average salary,

and average number of funds overseen by an individual director-the Commission

was able to “estimate the annual compensation cost per fund ” of the 75%