We are discussing Trinity Wall Street v. Wal-Mart Stores, Inc 792 F.3d 323 (3rdCir. 2015).
The majority purports to “empathize” with “those who labor with the ordinary business exclusion and a social-policy exception that requires not only significance but 'transcendence. . .'" Id. The majority ascribes this need for empathy to the Commission, Id. (“Despite the substantial uptick in proposals attempting to raise social policy issues that bat down the business operations bar, the SEC's last word on the subject came in the 1990s, and we have no hint that any change from it or Congress is forthcoming.”), and calls on the Commission to revisit the area. Id. (“We thus suggest that it consider revising its regulation of proxy contests and issue fresh interpretive guidance.”).
But in fact the “transcend” concept is not a problem of the Commission's making but a fabrication of the majority of the panel.